R National Association of Probation Officers v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Mr Justice Ouseley,Mr Justice Simon |
| Judgment Date | 12 December 2014 |
| Neutral Citation | [2014] EWHC 4706 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5146/2014 |
| Date | 12 December 2014 |
[2014] EWHC 4706 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Mr Justice Simon
Mr Justice Ouseley
CO/5146/2014
Miss Helen Mountfield QC (instructed by Slate R Gordon) appeared on behalf of the Claimant
Miss Kate Gallafent QC (instructed by Treasury Solicitors) appeared on behalf of the Defendant
This judicial review claim is being discontinued. We indicated at the start of this hearing that the court will not on this application — which relates to costs of the use of a particular document — be drawn into anything approaching a general adjudication of the hotly disputed issues in the case — hotly disputed, that is, until not very many days ago. On a discontinuance, the ordinary rule is that the claimant who discontinues pays the other side's costs, CPR part 38.61, but the court can order otherwise and we are asked to do so today.
The position where a judicial review has been settled by consent is different. There the court has a broader discretion as to costs; CPR Part 44(2). This case has not been settled. It is being discontinued, that is what the application recites. Principles in cases such as M 2012 EWCA Civ 595 deal with settlements as such. The difference between a discontinuance and a settlement or withdrawal by consent is plain. A discontinuance is unilateral. A settlement, of course, is consensual. The fact that the defendant, here the Secretary of State, obviously does not object to the discontinuance, does not turn it into a settlement. It seems to us there is no doubt whatever that this is a discontinuance and the question is whether the ordinary rule as to the costs should apply in the circumstances of the case.
Miss Mountfield QC for the claimant, NAPO, says that the disclosure ordered by Irwin J on 26 November 2014 and given on 28 November 2014, together with the Secretary of State's evidence served on 4 December 2014, has given her clients in effect everything that they sought by the litigation. In fact, after the disclosure on 1 December 2014 NAPO, if I can express it that way, made representations on safety issues which were considered by the Secretary of State. Then came the Secretary of State's evidence on 4 December. NAPO served its application to discontinue on 8 December 2014.
Looking back a little, on 29 October 2014 the Secretary of State had sent a detailed response to the claimant's pre-action protocol letter of 20 October 2014. That was very far from being the first exchange of correspondence. The 29th October letter gave what seems to me, having read it twice, a substantial indication of the Secretary of State's position on the issues raised, though no doubt there was more to say as Miss Mountfield would vigorously assert. But the short position is that the Secretary of State has not accepted that there is here any enforceable legitimate expectation, or that the system will be unsafe after exchange of contracts (which NAPO said was at the least a risk), or that fairness required disclosure to NAPO in order that they might make representations to the Secretary of State.
It is true that the Secretary of State's disclosure and evidence satisfied NAPO on safety concerns, or at least satisfied them to the point where they were ready to discontinue. But it is not shown that the Secretary of State has made any of the legal errors alleged, nor that the Secretary of State took any steps in relation to safety because of NAPO's evidence or submissions in this litigation. It seems to me that the case is quite different, for example, from Nelson's Yard [2013] EWCA Civ 235 where the defendant had undoubtedly committed a legal wrong, driving the claimant to start the proceedings.
The claimants here, no doubt perfectly properly, started the proceedings not because there was at that time a demonstrable legal wrong (though NAPO would contest that) but rather because they sought assurance as to the Secretary of State's position in relation to safety. Other cases referred to by Miss Mountfield this morning include Dempsey [2013] EWCA Civ 863 and Scott [2009] EWCA Civ 217. With deference to her submissions, which have been as helpful as they have been energetic, those cases do not assist either.
It seems to me in all the circumstances (and I make no criticism of...
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