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Neutral Citation Number:	2013 UKUT 294 AAC
Reported Number:
File Number:	JR 3126 2011
Appellant:	R(LR)
Respondent:	FTT (HESC) and Hertfordshire CC
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	25/06/2013
Date Added:	09/08/2013
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	judicial review
Secondary Category:	Tribunal procedure and practice (including UT)
Secondary Subcategory:	costs
Notes:	Reported as [2013] AACR 27. Judicial review –mandatory transfer – costs – principles to be adopted Following the Upper Tribunal‘s decision in R (LR) v First-tier Tribunal (F-tT) and Hertfordshire County Council (SEN); [2013] AACR 26 the claimant’s parents made an application for their costs in pursuing the case. The original case was a mandatory transfer from the High Court. The issue before the Upper Tribunal was whether the correct principles to apply to the application were the same as those which applied in judicial review proceedings in the High Court or (by analogy) in a statutory appeal to the Upper Tribunal (UT) against a decision of the First-tier Tribunal (F-tT). The case was heard by a cross-Chamber three-judge panel. Held, dismissing the application, that: 1. the difference between paragraph (1) and the wider paragraph (3) of rule 10 of the Tribunal Procedure (Upper Tribunal) Rules (the UT Rules) in relation to costs on appeals and judicial review respectively did not require High Court-style costs shifting to be adopted in judicial review cases before the Upper Tribunal, although it was open to the Upper Tribunal to make such an order (paragraph 25); 2. in this particular class of cases with which the UT is concerned (where judicial review is sought of a decision of the F-tT and only the UT has jurisdiction in respect of it), the general rule should be that costs in judicial review should not be ordered where the tribunal below would have had no power to order costs. Such an approach was better calculated to promote access to justice. There was nothing in the nature of such judicial review cases which required a different approach to be adopted from that applicable to appeals (paragraphs 28 to 29 and 34); 3. it was generally right to be wary of reading concepts or importing principles from the Civil Procedure Rules where the UT Rules have not done so (paragraph 30); 4. the Tribunals, Courts and Enforcement Act 2007 had indicated expressly a number of areas where the practice of the UT was to be to follow that of the High Court but it had not done so in relation to costs. The approach adopted by the UT in the present case was more consistent with the overriding objective of enabling it to deal with cases fairly and justly (paragraphs 31 to 33); 5. the UT panel saw no reason not to apply the general rule as established in this case. The First-tier Tribunal (Health, Education and Social Care Chamber) had a power to award costs for unreasonable conduct but the conduct of the interested party was not “unreasonable” for the purpose (paragraphs 38 to 41).
Decision(s) to Download:	[2013] AACR 27ws.doc