knowledge 6 January 2017 |

Judicial Review and Decision-makers’ Immunity from Costs: Far From a Rubber-Stamping Exercise

In a recent briefing, we considered the Supreme Court’s decision in Miley v Employment Appeals Tribunal,¹ where that court held that “as a matter of public policy, and arising from its function, the EAT should not primarily be liable for an order of costs in judicial review proceedings when it has not participated in such proceedings, and has indicated such a position initially”. A rule similar to that which applies to judges² should apply, meaning that while the EAT would not in the first instance be liable for costs, that immunity would be lost if the EAT had acted with mala fides or with impropriety.

This issue has now come before the High Court again. In Bradshaw v Delahunty,³ the applicant sought to review a decision of the County Registrar, acting in a quasijudicial capacity, to refuse to transfer his proceedings from her list to that of a different county. When the County Registrar was notified of the application, her solicitor adopted the approach taken in Miley by writing to the applicant’s solicitor indicating that the respondent would not be taking part in the proceedings and that no costs order should be sought against her at their conclusion.

However, the respondent then went one step further and applied to the High Court “to re-affirm the position which has been repeatedly established by the courts” and as set out in Miley above, that absent bad faith, if she did not contest the proceedings, she would not be fixed with the costs of the applicant should he succeed.

The High Court declined to consider, or give any view on the “re-affirmation” sought commenting that the application had been brought with “undue haste” and was not appropriate at this time. The proper time for this submission was after judgment, at the point when any submissions as to costs are heard. Barrett J was concerned that if he gave or refused the “re-affirmation” sought, it might be perceived to fetter in some way the discretion as to costs of the judge hearing the application. He also added that the role of the court was the administration of justice, not the giving of legal advice as to how parties are positioned legally at any one time. This was a matter for lawyers.

He also sounded a note of caution, wondering whether in making her application, the County Registrar might not inadvertently have converted into a partly contested application what was to be, so far as her role was concerned, an entirely uncontested application.

This case illustrates that in judicial review proceedings, while those exercising administrative decision-making functions or acting in a quasi-judicial capacity may enjoy immunity for costs if they are within the ambit of the Miley decision, this is far from a rubber-stamping exercise. Any attempt by such a body to copper fasten its position by effectively pre-empting the making of a fully informed decision on costs by the court of trial may find that this has the opposite effect.