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R (Gourlay) v Parole Board

R (Gourlay) v Parole Board

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Michaelmas Term

[2020] UKSC 50
On appeal from: [2017] EWCA Civ 1003

Appellant Respondent

Hugh Southey QC Ben Collins QC
Nick Armstrong Robert Moretto

(Instructed by Chivers	(Instructed by The
Solicitors (Bingley))	Government Legal

Department)

LORD REED: (with whom Lord Hodge, Lord Lloyd-Jones, Lady Arden and
Lord Leggatt agree)

1. This appeal raises a question concerning the role of this court in relation to the principles governing the award of costs in lower courts.

The facts

2. The material facts can be shortly stated. The appellant, Mr Gourlay, is a life prisoner. The respondent is the Parole Board. In 2014 the Board met to consider whether it would be appropriate to direct the appellant’s release. If it did not direct his release, it was required to consider whether to recommend his transfer to open conditions. On 10 March 2014 the Board issued its decision. It did not direct his release or recommend his transfer to open conditions. The appellant then brought proceedings for judicial review of the decision. In the claim form, both aspects of the decision were challenged. The Board did not take part in the proceedings. In its acknowledgment of service, it ticked the box stating that “the defendant … is a court or tribunal and does not intend to make a submission”. At the hearing, counsel for the appellant confined his challenge to the decision not to recommend a transfer to open conditions. The challenge was successful, and that aspect of the decision was quashed: [2014] EWHC 4763 (Admin).

The treatment of costs at first instance

3. The appellant then applied for an order finding the Board liable for his costs. His submissions in support of that application reflected the established practice, described in R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207; [2004] 1 WLR 2739, of not making an award of costs against a court or tribunal which adopted a neutral stance in proceedings in which its decision was challenged, in the absence of exceptional circumstances, such as flagrantly improper behaviour. In Davies, Brooke LJ, with whom Longmore LJ and Sir Martin Nourse agreed, identified four issues as arising for consideration, at para 3:

“(1) What is the established practice of the courts when considering whether to make an order for costs against an inferior court or tribunal which takes no part in the proceedings, except, in the case of justices, to exercise their statutory right to file an affidavit with the court in response to the application? (2) What is the established practice of the courts when considering whether to make an order for costs against, or in favour of, an inferior court or tribunal which resists an application actively by way of argument in the proceedings in such a way that it makes itself an active party to the litigation? (3) Did the courts adopt an alternative established practice in those cases in which the inferior court or tribunal appeared in the proceedings in order to assist the court neutrally…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] UKSC 50
Decision Date

CaseChat Overview and Summary

The appeal in R (Gourlay) v Parole Board concerned the award of costs in judicial review proceedings against the Parole Board. The appellant, Mr Gourlay, a life prisoner, had successfully challenged a decision of the Board not to recommend his transfer to open conditions. He sought an order for costs against the Board, arguing that the principles in R (Davies) v Birmingham Deputy Coroner did not apply to the Board when it was deciding questions of transfer, and that there were exceptional circumstances justifying an award of costs. The first instance judge and the Court of Appeal rejected his submissions. The Supreme Court was asked to decide whether Davies continued to represent the approach that should be adopted to costs orders against courts or tribunals, and whether the Board should be treated as a court or tribunal for that purpose.

The Court held that it would ordinarily be slow to intervene in matters of practice, including guidance given by the Court of Appeal as to the practice to be followed by lower courts in relation to the award of costs. The Court of Appeal must fulfil its primary responsibility for monitoring and controlling developments in practice, but its decisions on such matters could not be treated as binding precedents in the way in which its decisions on questions of law were. The Court of Appeal should only review its previous decisions on matters of practice where there was sufficient reason to do so, such as a material change of circumstances. In this case, the Court of Appeal had carefully considered the appellant's submissions and rejected them on their merits, committing no error of law. The principles in Davies were consistent with the Civil Procedure Rules and the approach did not treat legally aided litigants differently from others. There was nothing in the Court of Appeal's reasoning which was erroneous in law, or with which the Supreme Court would consider it appropriate to interfere as a matter of practice. The appeal was dismissed.

Orders