Dudley Metropolitan Borough Council, R (on the application of) v Secretary of State for Communities and Local Government

MR JUSTICE SINGH: On the question of remedies I am going to quash the decision of 19 April 2011. The defendant accepts that the normal principle is that in a judicial review case, where the court has found that there was a breach of the duty to act fairly, for example, by not consulting as required by law at a formative stage, the court would normally quash the resulting decision. This is because as a constitutional matter it is not for the court to pre-empt or predict what the outcome of a lawful and fair procedure would be. That is a matter entrusted by the law to the Secretary of State.

The defendant also accepts that the test which the court should apply in exercising its discretion, exceptionally, to refuse to make a quashing order is to ask itself whether it is inevitable that that decision would be the same even if a lawful and fair procedure were adopted. I am not prepared to reach the conclusion that that would be inevitable in this case.

MR OLDHAM: I am grateful for your Lordship's judgment and order. We apply for our costs, my Lord. I apprehend that my learned friend will say that -- I am not quite sure what he will say, he will certainly say that we shouldn't pay all our costs. Shall we listen to him first?

MR OLDHAM: Can I take your Lordship to CPR 44 on page 1296 of the Rules, please. These will of course be very familiar to your Lordship but it's perhaps always worthwhile just reminding oneself.

MR OLDHAM: Sub-Rule 1, "The court has discretion as to costs in those terms". Then 44.3, Sub-rule 2, "If the court decides to make an order about costs the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party", so that is still the starting point unless there is a different order, referred to in (b) that we will get our costs.