R (Gourlay) v Parole Board  EWCA Civ 1003
"Does the established practice of the High Court, to make no order for costs for or against an inferior tribunal or court which plays no active part in a judicial review of one of its decisions, extend to the [Parole] Board?"
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
The WLR Daily case summaries
 WLR (D) 474
Regina (Gourlay)v Parole Board
2017 May 4; July 14Gloster, David Richards, Hickinbottom LJJ
Costs— Parole Board— Judicial review— Claimant successful in claim for judicial review of decision of Parole Board— Whether jurisdiction to award costs against Parole Board
The claimant, a life prisoner serving his sentence in closed conditions, brought judicial review proceedings challenging a decision of the Parole Board on review to decline to release him and in particular not to recommend his transfer to open prison conditions. The board played no active part in the judicial review. The judge allowed the claim on the ground that the board had acted unlawfully on the issue of his transfer and remitted the matter for reconsideration. The judge made no order as to costs. The claimant appealed.
On the claimant's appeal—
Held, appeal dismissed. The established practice of the High Court was to make no order for costs for or against an inferior tribunal or court which played no active part in a judicial review of one of its decisions. In respect of decisions concerning the release of prisoners, the Parole Board was an independent and impartial “court” for the purposes of article 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms; and was also, clearly, acting as a court or tribunal for the purposes of the general proposition that if a decision of a court or tribunal was challenged by way of judicial review, it would not be liable for the costs of the claim unless it had behaved improperly or unreasonably or took an active part in the proceedings . Although the recommendation of the board in relation to transfer was only advisory—the ultimate decision being one for the Secretary of State—a similar approach to the costs of challenging decisions of the board in relation to transfer from category C to category D was appropriate since in considering transfer decisions, the board both in practice acted, and in principle was required to act, as if it were a court or tribunal, even if article 5(4) did not require it to do so. In any event, in such cases, the offender had an alternative focus for a claim (including a costs claim) namely the Secretary of State. On a challenge by a prisoner to a board recommendation in respect of transfer, the Secretary of State was a potential interested party in each of two capacities. First, he had the right to make representations to the board on that issue. Second, whether or not the Secretary of State followed the board’s recommendation, he had to make the ultimate decision as to whether or not to direct transfer. That decision would be amenable to judicial review, in which the Secretary of State would be a (if not, the) defendant. It would therefore likely be open to the prisoner to make the Secretary of State a party to any claim challenging a decision in relation to transfer. The Secretary of State was not a court or tribunal for either article 5(4) or the purposes of the established general principle; and so the usual costs regime for a non-court or tribunal would apply and, in appropriate cases—which would not be all cases—the prisoner would be able to obtain a costs order against the Secretary of State ( paras 28, 31, 57–58,64–67, 68,69.
R (Davies) v Birmingham Deputy Coroner, CA and R (Gudanaviciene) v First-tier Tribunal (Immigration and Asylum Chamber) ; , CA applied.
R(M) v Croydon London Borough Council, CA considered.
Hugh Southey QC and Stephen Thornton (instructed by Chivers Solicitors) for the claimant.
Ben Collins QC (instructed by Treasury Solicitor) for the Parole Board.
Reported by: Alison Sylvester, Barrister.