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R (on the application of Gourlay) vs. Parole Board - (04 Dec 2020)

High Court and Court of Appeal have discretion to the award of costs, subject to the rules of Court


Present appeal raises a question concerning the role of the Supreme Court in relation to the principles governing the award of costs in lower Courts. The Appellant, Mr Gourlay, is a prisoner serving a life sentence, the minimum term of which has expired. In 2014, the Parole Board decided not to direct his release on licence and not to recommend his transfer to open prison conditions. Mr Gourlay challenged those decisions on a claim for judicial review. The Parole Board did not take part in the proceedings. The High Court decided that, the Parole Board’s decision not to recommend Mr Gourlay for transfer to open conditions was unlawful. Upon his success, Mr Gourlay applied for an order requiring the Parole Board to pay the costs he incurred in bringing his claim for judicial review.

The High Court decided not to make such an order, following the practice described in R (Davies) v Birmingham Deputy Coroner that, if a court or tribunal adopts a neutral stance in proceedings in which its decision is challenged, it will not be liable for the costs of the claim, unless there are exceptional circumstances. The Court of Appeal upheld the High Court’s decision not to make an award of costs.

Section 51 of the Senior Courts Act, 1981 provides that, the High Court and the Court of Appeal have discretion as to the award of costs, subject to the rules of Court. The rules of Court include the general rule that, if the court decides to make an order about costs, the unsuccessful party will be ordered to pay the costs of the successful party. The rules of court do not, however, set out a comprehensive code. It is also important that the appellate courts establish principles upon which the courts’ discretion as to the award of costs may, within the framework of the Senior Courts Act, 1981 and the rules of court, be exercised. Responsibility for the development of those principles falls principally upon the Court of Appeal. Generally, such principles are matters of practice, rather than matters of law.

The Supreme Court will 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 Supreme Court can intervene where there has been an error of law, but, bearing in mind the discretionary nature of decisions on costs, and the rarity of their raising any question of law of general public importance, appeals solely on costs are not ordinarily appropriate. There is nothing in the Judge’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 Court of Appeal also did not commit any error of law. In particular, its approach was not inconsistent with the rules of Court.

In addition, the Court of Appeal correctly recognised that the fact that a party is in receipt of legal aid cannot affect the principles on which the discretion to award costs is normally exercised. It also did not incorrectly treat itself as bound, as a matter of precedent, to follow the decision in R (Davies) v Birmingham Deputy Coroner. Appeal dismissed.


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