1 Jud. Rev. 8 (1996)
Costs at the Leave Stage

handle is hein.journals/judire1 and id is 12 raw text is: 









Costs at the Leave Stage

Mark   Shaw
2 Hare Court


The uninitiated may wonder  why the award of costs should be a live, let alone a contro-
versial, issue at the ex parte application for leave. The more experienced will know that the
fiction of the ex parte hearing is rapidly being dispelled by the reality of the contested inter
partes leave application. This phenomenon, combined with the tendency of many judicial
review applications never to reach a substantive hearing, makes it important for appli-
cants and respondents to assess their costs exposure at the leave stage. The following are
the guiding principles.

1. The Court  has jurisdiction to award costs at the leave stage. After contradictory earli-
   er decisions,' it is now established that the leave application constitutes proceedings
   for the purposes of s 51(1)(b) of the Supreme Court Act 1981.2

2. Where  the respondent appears at the leave stage and leave is refused, prima facie the
   normal  inter partes principles apply:' in short, costs follow the event so an unsuccess-
   ful applicant is at risk. There is, however, no uniform practice and many designated
   Crown   Office judges are reluctant routinely to award respondents the costs of what
   should be ex parte applications. Undue willingness to do so would inevitably increase
   the prevalence of the opposed leave application.' However, as opposed leave applica-
   tions become  more  and  more common   anyway,  there is a growing tendency  for
   respondents  to apply for and be awarded their costs.s The following circumstances
   will fortify the respondent's application.

   (1) A failure by the applicant to give full and frank disclosure (which the respondent
       then makes  good). Such conduct may also provoke a wasted costs order against
       the applicant's legal representatives.'

    (2) A failure by the applicant to write a letter before action to the prospective respon-
       dent.7

    (3) The hopelessness of the application.! This may also have consequences for the
       grant of legal aid taxation to the applicant.'

    (4) The abandoning of the application with insufficient notice or a failure to appear.1o

    (5) A failed request by the applicant for interim relief or other interlocutory orders.
       If the request is successful, costs will normally be reserved and dealt with in the
       normal  way at the substantive hearing.2

    (6) A request by the applicant for expedition and an abridgement of time for service
        of the respondent's evidence.

    (7) A request from the judge, who has examined the case on the papers or adjourned
        the oral application, for the respondent's assistance in deciding whether to grant


8


[1996] JR

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