In this article we consider the costs involved in a judicial review application. This is a process where an individual asks the courts to review a decision made by a public body (e.g. the Home Office).

Given our involvement in some of the highest profile immigration related judicial review and appeals cases in the last 20 years, this post will focus specifically on the costs for individuals challenging decisions in this area, although the broad principles will apply to judicial reviews in other areas.

As ever, this is not legal advice, and should not be taken as such. If you would like advice on your particular case then please get in touch to arrange a consultation.

Background  

Anyone bringing a legal challenge in court will need to know what the likely fees will be before embarking on what may be a lengthy and expensive set of proceedings. See our overview of the judicial review process for more information on this.

There are three broad areas which individuals will need to consider when considering whether they can bring a claim:

  • Their own legal fees
  • The other party’s (or parties’) legal fees
  • Court fees and other third party costs (e.g. experts)

Of these potential costs, it is likely that the legal fees will be the most significant, and which we discuss here.

The “Loser pays” principle

Before getting into the numbers, an important consideration for individuals contemplating judicial review is that, where successful, they may be able to recover at least some of their legal costs back at the conclusion of the case.

By the same rules, if unsuccessful, they may be liable to pay some or all of the costs of the other side. In the immigration field, this may mean picking up some or all of the Government Legal Department’s bill for responding to the judicial review claim.

The rules on who is able to claim their costs at the end of a case, and to what extent, are pretty complex.

In addition to considering who has been successful – which in itself is not always clear – the court will consider how the parties have behaved during the course of the litigation.

For example, has an individual followed the Pre-Action Protocol before issuing proceedings? Have the proceedings been unnecessarily delayed by one or other of the parties? Could the claim have been settled earlier?

Even where a party is successful, if a court finds that they have not behaved properly during the course of the litigation, they may not get their costs the fullest extent, or at all.

It is for this reason that it is critical that any requirements of the relevant court rules are followed carefully.

The principle in practice: an example court order

This is an example of an order made by the Upper Tribunal in a judicial review case:

Although this order is publicly available (unredacted), we have redacted the names for the avoidance of doubt, and in the unlikely event that an order for anonymity is later made.

You can see from the annotations that the individual bringing the claim has been successful, and that the judge has ordered the “Respondent” (which in the vast majority of immigration related matters will be the “Secretary of State for the Home Department”, although commonly referred to as the Home Office) to pay that individual’s costs.

However, as also noted, the Home Office may not simply accept the amount that the successful claimant’s lawyer’s have charged, and may offer a lower amount (they may suggest that certain steps should not have been taken, or should have been taken by a more junior – i.e. less expensive – lawyer, or should not have taken so long etc). This is why provision is made in the order for costs to be “assessed [by a judge] if not agreed”.

Your legal team’s costs

Although we cannot speak for all organisations offering these services, substantive work involving legal challenges of this kind will only ever be undertaken at this firm by a partner or by an associate (i.e. a qualified solicitor).

This reflects the complexity of the issues involved in bringing these cases, and the experience needed to properly run an application for

Pre action

As set out above, the court would normally expect that a lawyer acting on behalf of a judicial review claimant will have set out reasons why the decision-maker should reverse or reconsider the decision made, and giving notice that a claim may follow if the required action does not take place.

If there had been a chance to set out the reasons in detail in a pre-action letter and for any reason the procedure was not properly followed then even if a judicial review claim is ultimately successful, a court may decide that it is not willing to order costs against the decision-maker.

As an indication of the time taken for the preparation of a detailed letter before claim and a review of relevant documents, this would usually be around 4 to 6 hours, although of course depends on the complexity of the case.

Note that this time is not usually reclaimable from the other side if proceedings are subsequently issued, and the claimant is successful.

Interim relief/court injunction

Where there is no time to send off detailed reasons as to why the decision-maker should be reconsidering their decision, then an individual may need to seek an urgent order from the court (see our post on interim relief for more information on this).

There are a number of variables in an urgent application, but in general the cost of making an application would be an additional element of the main claim, and likely to involve 3 to 6 hours more work.

There is also a court fee that would normally be payable for the urgent application itself. At the time of writing, that fee is £255.

Issuing the main claim

The first set of documents that are filed with the court (assuming that there has not been an application for interim relief) will be an application for permission from the court to grant permission for the judicial review to proceed.

As set out in our overview of the judicial review process, the individual bringing the claim is here asking the court to consider their case, and to grant permission.

In order for a court to grant permission, they must find that there the claim has an arguable case which has a reasonable prospect of success.

This “application for permission” is made in writing, or “on the papers”, as it is sometimes called.

Preparation of the application for permission involves completing the claim form, drafting detailed legal arguments as to why the decision taken was wrong, plus collating the supporting evidence that judge will need to make their decision.

Given the number of immigration judicial review claims that the courts receive (several thousand per year), it is vital that applications for permission are clear and complete, and straightforward for a time-pressed judge to navigate.

As an example, we would usually budget a further 4-6 hours to undertake this preparation, assuming that we have been involved with the case previously.

The court charges a fee of £385 payable at the stage of issuing the main claim.

Barristers

It is at this stage in many cases that specialist counsel (known as barristers) will be brought on board to prepare detailed grounds, and possibly to advise on other aspects of the claim.

This is another important cost that claimants will need to be aware of when considering a claim. In our experience they will usually need to spend 6-12 hours on a case to properly prepare effective and detailed grounds of challenge.

(The importance of the permission decision)

The decision of the court on whether or not to grant permission is usually of substantial significance. See our post on success rates in judicial review claims for more on this.

In the vast majority of cases where permission is granted, the decision-maker is usually willing to either withdraw (or at the very least reconsider) the decision under challenge.

Similarly, if permission is refused then that will normally be the end of the case (subject to some limited opportunities to ask the court to reconsider its decision).

Given the significance of the permission decision, it is important that the claim is as detailed as possible, and anticipates any potential defence that may later be relied on.

This gives the decision-maker time to reflect on whether to maintain the original decision (many cases are settled without a defence being filed), or, if a defence is filed, gives the judge plenty to consider as to the legality of the decision under challenge.

Other work pre-permission

Sometimes in a defence, a decision-maker may seek to justify their decision based on new matters, and there may be a need to either amend the grounds of challenge and/or to file other papers with the court (known as a “reply”).

In the event that a defence is filed, this may require additional time for prepare a response. In our experience, defences are filed in at least 50% of the cases we run.

The decision-maker’s legal costs

As set out above, in the same way that a claimant would have an expectation of being able to recover some (if not all) of their costs if the claim succeeds, if the claim fails then the claimant may have to bear a cost liability for decision-maker’s costs in responding and dealing with the claim.

In the majority of cases where an application for permission is refused, the costs of the Government Legal Department (the government’s lawyers) will include time taken, for example, or file an acknowledgment of service, or for counsel’s costs if they have been involved in settling proceedings. In our experience, these costs will usually range from £900-£1800 .

In some cases, where the decision-maker has taken the time to prepare a full defence, and sometimes instructing external counsel to do this, the costs – even at the stage of a refused permission application – may be substantial.

Note that failure to pay a litigation debt following proceedings may impact upon future immigration applications.

Summary: costs to permission

Given the centrality of the judge’s decision on permission, an estimate of costs is usually given by lawyers to this point in proceedings.

As we have seen, given the number of variables involved, it is often difficult to predict the costs for the work involved in a judicial review claim.

However, as set out on our judicial review services page, we would usually advise clients to prepare for the following costs in a non-urgent judicial review application

  • Our costs: £3,000 – £6,000
  • Barrister’s costs: £1,500 – £3,000
  • Court fees: £385
  • Decision-maker’s costs (if unsuccessful): £900-£1800

These costs do not include VAT, and will vary substantially depending on the seniority of the lawyers involve, and the complexity of the case.

As noted above, the majority of these costs will be recoverable if an individual is successful, and therefore it is essential to obtain clear advice on the merits of a claim before proceeding. We offer this service via our one-off consultation service.

If the decision maker agrees to withdraw the decision under challenge, then time spent on settlement negotiations would be 2-4 hours. It is during these negotiations that a successful claimant will attempt to persuade a decision-maker to pay a claimant’s costs.

Beyond the permission stage

If, despite the grant of permission, this is a case in which a decision-maker decides to continue to defend the claim then the costs for a full hearing would be very significant.

It is partly because those costs are likely to be so significant that very few cases proceed to a full hearing: if the decision-maker gets it wrong and the court finds for the claimant, then the decision-maker will be liable for what is usually about 90% of the costs of the entire case. As an indication, this would include

  • Preparation for full hearing: 20-30 hours
  • Costs for barrister: 30-40 hours
  • Court fee for continuation of £385

As set out above, the risks are the same on the claimant side, where permission is granted, but where an individual goes on to lose the substantive claim.

A note on costs recovery

Even where costs are awarded following a settlement of the claim, whether before permission is granted, once permission, is granted or at the full hearing, the recovery of those costs is not automatic.

Often there will be disagreements about the rate paid (for example, whether a more junior lawyer should have undertaken the tasks), or whether fewer hours should have been spent on the case etc. As with any attempt to recover money from a losing party in litigation, the process itself can be complex and time-consuming.

We work with a number of professional costs lawyers with a view to maximising the amount that can be recovered, though of course this does mean paying them a percentage of the cost bill.

Sometimes it is even necessary for a court hearing as regards the amount to be recovered. Again, this is a matter on which we regularly advise clients who have been successful in their claims, and where costs are disputed by the other side.

In general, time spent on costs negotiations will depend on whether the matter has settled before a final hearing or only after a final hearing and therefore it is difficult to predict how much time will be involved, but in the majority of cases the number of hours spent at this stage is between 3 to 5.