R (on the application of Gourlay) v Parole Board [2020] UKSC 50

After successfully judicially reviewing the Parole Board’s refusal to recommend his transfer to open conditions, Mr Gourlay sought his costs. The Board had remained neutral and had not taken part. The Supreme Court dismissed his appeal against the refusal of a costs order, holding that the lower courts made no error of law in applying the established practice and that the Supreme Court should ordinarily be slow to intervene in matters of practice.

The challenge and the application for costs

Mr Gourlay successfully challenged the reasons the Parole Board had given for declining to recommend transfer to open conditions. The Board had remained neutral in the judicial review. The later appeal concerned who should pay the costs of that challenge.

Mr Gourlay then sought his costs. The practice described in Davies was to make no order for costs against an inferior court or tribunal which did not appear, except for a flagrant instance of improper behaviour or an unreasonable failure to sign a consent order. A body which actively resisted would normally bear costs, while one appearing only to give neutral assistance would not. King J held that the Board had acted in a judicial or at least quasi-judicial capacity. A theoretical distinction between a release decision and a transfer recommendation was artificial, because the questions were bound up together. The Board had not made itself an active party. Its failure to answer the letter before claim was regrettable, but it was not improper or unreasonable behaviour. He made no order as to costs.

The Court of Appeal

The appeal was put on the sole ground that the Davies principles do not apply to the Board. It was conceded that Davies bound the Court of Appeal. Hickinbottom LJ, with whom Gloster and David Richards LJJ agreed, rejected the arguments. The Board’s independence and impartiality were not in doubt. Failing to concede a claim is not the same as contesting it, and a power to review a decision does not take the case outside Davies. The approach in M, concerning costs after a degree of success through settlement, did not alter the distinct practice for neutral courts and tribunals; Gudanaviciene had already so held and was followed. The principle is well settled and supported by public policy. It is not displaced because the Board is a body corporate, or because neutral assistance from it might be useful. The source of funding is immaterial. On release the Board acts as a court or tribunal. On transfer it performs a similar risk assessment, from the same materials and to the same procedural standards required by the common law, and a panel often considers both questions together. The same costs practice therefore applies. The appeal was dismissed.

Practice, precedent and the Supreme Court

The agreed issues were whether Davies still represented the correct approach and whether the Board should be treated as a court or tribunal for that purpose. Lord Reed, with whom Lord Hodge, Lord Lloyd-Jones, Lady Arden and Lord Leggatt agreed, explained the Supreme Court’s role. Section 51 of the Senior Courts Act 1981 places costs in the court’s discretion, subject to rules of court. CPR rule 44.2 states a general rule that the unsuccessful party pays the successful party’s costs, but the court may make a different order and must consider all the circumstances, including conduct. The rules are not a complete code. Principles guiding the discretion are developed principally by the Court of Appeal and are generally matters of practice. The Supreme Court is ordinarily slow to intervene in practice: it hears fewer cases and cannot adjust practice with the same speed and flexibility. It will intervene where an error of law is established, but appeals solely on costs are not ordinarily appropriate.

A decision laying down a principle of practice is not a binding precedent in the sense applicable to a question of law. First-instance judges retain a residual discretion, and the Court of Appeal may review its own practice decision for sufficient reason, such as a material change of circumstances or a decision reached per incuriam. That allows consistency without preventing development. The Court of Appeal had examined the arguments for departing from Davies. Describing earlier decisions as binding did not mean that they had been treated as strict authorities on law, and involved no error of law.

King J’s decision likewise involved no error of law. The central point was that the Board had decided in a judicial or quasi-judicial capacity and had remained neutral. Whether it falls within the Davies practice is itself a question of practice, not a definition adopted for some other purpose. Nothing in CPR rule 44.2 is inconsistent with that practice. A body which decides judicially or quasi-judicially and then declines to defend its decision, maintaining impartiality so that its reasons speak for themselves, is not an unsuccessful party within the rule. The substance of the rule was already in force, though differently numbered, when Davies was decided. Legal aid cannot change the normal principles: section 30(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 provides that it does not affect other parties’ liabilities or the principles on which the discretion is normally exercised. Observations in JFS about a possible protective costs order were made in a different context and were consistent with treating legally aided litigants no differently. Where the question is one of practice, the Supreme Court should not substitute its own assessment for that of the Court of Appeal.

Verdict: The Court unanimously dismissed Mr Gourlay’s costs appeal. There was no error of law in the refusal to order the neutral Parole Board to pay. The judgment concerned the exercise of a discretion and created no absolute immunity from costs.

Source: R (on the application of Gourlay) v Parole Board [2020] UKSC 50