There was an application to discontinue proceedings after leave had been granted. Individual members of NALGO set out to guard against redundancy in the wake of the Council’s budget settling process. The challenge became academic when the Council rescinded a number of outstanding redundancy notices. Simon Brown J, having set out the general rule that costs follow the event on discontinuance where this is equated with defeat, added:
‘That, of course, was dealing with the position in an ordinary civil action. But I have no doubt that if judicial review proceedings are discontinued there is equally a general rule that that will be at the applicant’s cost. In other words the respondents will recover their costs, provided again that such discontinuance can be shown to be consequent upon the applicant’s recognition of the likely failure of his challenge.
The position, is, however, entirely different where, as here, the discontinuance follows some step which has rendered the challenge no longer necessary, which in other words renders the proceedings academic. That may have been brought about for a number of reasons. If, for instance, it has been brought about because the respondent, recognising the high likelihood of the challenge against him succeeding, has pre-empted his failure in the proceedings by doing that which the challenge is designed to achieve – even if perhaps no more than agreeing to take a fresh decision – it may well be just that he should not merely fail to recover his own costs but indeed pay the applicant’s.
On the other hand, it may be that the challenge has become academic merely through the respondent sensibly deciding to short-circuit the proceedings, to avoid their expense or inconvenience or uncertainty without in any way accepting the likelihood of their succeeding against him. He should not be deterred from such a cause by the thought that he would then be liable for the applicant’s costs. Rather in those circumstances, it would seem to me appropriate that the costs should lie where they fall and there should accordingly be no order. That might equally be the case if some action wholly independent of the parties had rendered the outcome of the challenge academic. It would seldom be the case that on discontinuance this court would think it necessary or appropriate to investigate in depth the substantive merits of what had by then become an academic challenge. That ordinarily would be a gross misuse of this court’s time and further burden its already over-full list.
In my judgment, this case is clearly one where this court cannot hope, in a short time, to discern what the likely outcome of the challenge would have been had it been litigated to a conclusion.
All that it is possible to say with certainty is that, without accepting the validity of the challenge the respondents, following the grant of leave, acted so as to render academic any continuing interest in the proceedings on the part of those who NALGO represent. In short, the case seems to me to fall clearly into the category of those in which it is appropriate to allow discontinuance without penalty to the applicants.’
Simon Brown J
(1992) 5 Admin LR 669
England and Wales
Updated: 15 May 2022; Ref: scu.272879