The Court of Appeal has upheld a costs order against claimants who failed in their challenge to Prime Minister Theresa May’s decision to invoke article 50.
They argued that the decision was unlawful because it was based upon the result of a referendum that was itself unlawful as a result of corrupt and illegal practices, notably offences of overspending committed by those involved in the campaign to leave the EU.
Alternatively, it was said that the prime minister erred in law in not responding to the subsequent evidence of those practices as it emerged.
However, last December, Mr Justice Ouseley refused permission to proceed with the judicial review on the basis of both delay and want of merit, and ordered the applicants to pay costs summarily assessed at £17,256.
The Court of Appeal dismissed the substantive appeal and the appeal against the costs order.
The circumstances in which a claimant may be ordered to pay a defendant’s costs of attending a permission hearing were considered in R (Mount Cook Land Limited) v Westminster City Council  EWCA Civ 1346. In that case, Lord Justice Auld said: “Generally – that is, save in exceptional circumstances – costs of and occasioned by such attendance should not be awarded against a claimant.”
Lord Justice Hickinbottom said Ouseley J had “clearly” had the Mount Cook factors in mind. “He referred to a number of the grounds being ‘hopeless’, and of the applicants continuing with the oral hearing although Supperstone J had indicated he considered the claim particularly weak.
“Ouseley J considered, with some force, that the applicants were inappropriately pursuing what was effectively a political campaign through the courts. In any event, the permission hearing was not a short event. It lasted a full day, with judgment reserved over the intervening weekend.”
Hickinbottom LJ observed that the applicants’ skeleton argument, drafted by two leading counsel and three juniors, occupied 48 pages; Ouseley J heard oral submissions from leading counsel for the prime minister, whose skeleton argument (at eight pages) was “modest in length”. For the prime minister, the issues raised were of “great – indeed, constitutional – importance”.
He continued: “I do not consider that Ouseley J can possibly be criticised for allowing the applicants every opportunity in making good their contention that their claims – or some of them – were arguable; or for allowing the respondent a modest opportunity to respond orally. He was clearly assisted by those submissions on behalf of the respondent. He was in the best position to assess whether this permission hearing was such as to warrant a costs order against the applicants.
“In my view, Ouseley J approached the issue of costs correctly, and the costs order he made was well within the margin of proper discretion and judgment left to judges in matters of costs. I do not consider that the contrary is arguable.”
Jessica Simor QC and Pavlos Eleftheriadis (instructed by Croft Solicitors) for the applicants. Sir James Eadie QC and Joseph Barrett (instructed by Government Legal Department) for the respondent.