Background
The University of Sussex had succeeded on most of its judicial review challenge to decisions of the Office for Students, obtaining an order quashing the entirety of the regulator’s decision concerning both breaches found against the University. The OfS nevertheless prevailed on Ground Two, concerning the extent of the Visitor’s jurisdiction, and on three more minor grounds.
The resulting costs judgment addressed two questions. First, the OfS argued that the University’s recoverable costs should be reduced by 10% to reflect the issues on which the regulator had succeeded. Second, the University sought the costs occasioned by the intervention of the Free Speech Union Ltd under section 87 of the Criminal Justice and Courts Act 2015.
The Court’s Holding
Mrs Justice Lieven declined to reduce the University’s costs. Although the University lost on the Visitor’s-jurisdiction issue and several minor grounds, the Visitor issue was important, novel and arguable within a relatively new and complex regulatory scheme, and permission had been granted to pursue it. The University had not acted unreasonably in raising or arguing the issue, and its overall success justified recovery of its costs without the proposed 10% reduction.
The Court also declined to order the Free Speech Union to pay the University’s intervention-related costs. Its submissions on “freedom of speech within the law” and Article 10 were of significant assistance in explaining the broader context and potential ramifications, even though they did not ultimately drive the Court’s conclusions and one argument was rejected. The intervention was proportionate and focused, and none of the relied-upon statutory conditions was established. In any event, the case’s exceptional public importance to the higher education sector would have made a costs order inappropriate under section 87(7).
Key Takeaways
- A successful judicial-review claimant’s costs need not be reduced merely because the defendant prevailed on some issues, particularly where the unsuccessful ground was novel, important and reasonably pursued.
- An intervener’s submissions may significantly assist the court by illuminating context and wider consequences even if the court rejects them or does not rely on them to decide the case.
- Section 87 limits recoverable costs to those resulting from an intervener’s involvement in the relevant stage; work performed before permission to intervene is granted falls outside that power.
Why It Matters
The judgment shows that courts will assess costs by reference to the litigation’s overall result and the reasonableness and significance of disputed issues, rather than mechanically discounting costs for every unsuccessful ground.
It also confirms that public-interest interventions in important regulatory litigation will not attract adverse costs simply because their arguments are rejected or prove unnecessary to the final holding. Contextual assistance and the wider importance of hearing competing perspectives can protect a focused intervener from a costs award.