The recent legal challenge to the agreement struck by the Conservative Party and the Democratic Unionist Party was so “hopeless” that the government was awarded the costs of attending the oral permission hearing.
A successful respondent in a judicial review can recover the cost of preparing the acknowledgment of service, but the Mount Cook principles provide that they will not receive the costs of attending the hearing unless there are “exceptional circumstances”.
The case saw Northern Ireland politician Ciaran McClean challenge the Conservative/DUP agreement that meant a £1bn payment to Northern Ireland in return for the DUP’s support of the government in Parliament. He argued that the agreement would lead to the expenditure of public funds for improper purposes, namely for the advantage of the Conservatives as a political party, and that the agreement was made in violation of the Bribery Act 2010.
Lord Justice Sales – sitting with Mr Justice Lewis – comprehensively rejected both, saying “neither of these grounds of claim is properly arguable in a court of law”.
The government sought its costs and Sales LJ said this was a case where the Mount Cook exceptional circumstances applied.
He said: “First, as appears from the judgment, I consider that this was a hopeless claim on both the grounds put forward. Secondly, the claimant persisted with this hopeless claim even although the clear flaws in it were pointed out in correspondence by the defendants.
“Thirdly, the claimant has had the benefit of an unusually long inter partes hearing at the permission stage involving a full exploration of arguments both orally and in writing on the part of the claimants and in writing and potentially orally, if they had been called upon, by the defendants.
“These factors in combination, in my view, mean that this is an exceptional case where… it would be appropriate to award the defendants their costs of the permission hearing.”
The claimant said there was a public interest in the claim and so no costs should be awarded. Sales LJ said this only happened very rarely, adding: “In my view, there is an inter-relationship here between the merits of a claim and an assessment of the public interest. As I have indicated, this was a hopeless claim. It was not one which raised real arguments of law which it was in the public interest to have ventilated in court proceedings.
“In my judgment, this is not a claim in relation to which it is appropriate for the burden in costs to be borne by the taxpayer. It is not an exceptional case such as would justify a refusal to award costs in favour of the defendants which would otherwise on ordinary principles be awarded in their favour.”