This case will be heard online on 15 and 16 July 2020. It concerns the nick-armstrongpractice of not awarding costs against courts and tribunals even where claimants have succeeded in overturning their decisions.

In this case the “court” in question is the Parole Board. The inverted commas are because one of the issues is whether the Board is, in fact, a court for these purposes. Mr Gourlay is a life sentence prisoner. On 10 March 2014 the Parole Board refused to recommend that he be transferred to open conditions (almost always an essential precondition to later release). The Secretary of State usually, but does not always, accept such recommendations. Mr Gourlay challenged the Board’s refusal to make a recommendation. In accordance with a published “litigation strategy” that it has had since 2013 the Board did not engage with that challenge. That strategy takes advantage of a practice encapsulated in a case concerning coroners, R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739, which is that courts and tribunals will not usually be ordered to pay costs provided they have maintained a neutral stance. Mr Gourlay succeeded in his challenge, but both the High Court, and the Court of Appeal, held that Davies applied to the Board, and so Mr Gourlay did not recover his costs. This meant, amongst other things, that his lawyers were only entitled to be paid at around a quarter to a third of the rate they would have received if party-party costs had been awarded in Mr Gourlay’s favour.

There are two issues before the Court: whether Davies is good law; and whether, if it is, it applies to the Board.

The case matters because levels of lawyer remuneration go to access to justice. Part of Mr Gourlay’s case is that Davies reverses the usual rule (since 1998 contained in Rule 44.2 of the Civil Procedure Rules) that the loser pays the winner’s costs. Mr Gourlay points to the increased marketisation of the civil justice system, whereby lawyers increasingly have to underwrite cases because legal aid has narrowed and, in some areas, has been withdrawn altogether. For that market to work, however, party-party costs need to be available. Conditional fees cannot work without party-party costs. Even where, as here, a party is legally aided, the differential between the two sets of rates is such that lawyers need party-party costs to cross-subsidise the cases that they lose. The concern is that if they are not available, or not predictably available, then lawyers will simply stop taking them (or take fewer of them). An increasing number of cases, including most recently ZN (Afghanistan) v SSHD [2018] 3 Costs LO 357, recognise this reality.

Mr Gourlay says that the rule in Davies pre-dates most of these developments, and is now unsustainable. He also says that to the extent the rule should be left in place, it should not apply to the Parole Board, which at least when it is concerned with recommendations for transfer to open conditions (rather than release) do not bind the Secretary of State. In that role, it is said, the Board is not acting as a court. Mr Gourlay also argues that a court, being neutral, would not normally have anything called “a litigation strategy”.

The Board resists all this. The Board says, amongst other things, that the rule in Davies reflects the importance of courts remaining neutral and above the fray. The long standing practice is there for good reason. The Board says there is no evidence of an adverse impact on access to justice for prisoners.

The Board also says that the Board is a court for these purposes, or as close to one as is necessary for the rule to apply.

Finally, the Board says that the Secretary of State for Justice should be made a party to proceedings like the present (because the Secretary of State is the other party before the Board) and so one answer would be for the Secretary of State to be made liable for the costs.

The case is listed for one and a half days. Practitioners of prison law await the result with interest.

Nick Armstrong is junior counsel for Mr Gourlay. He is instructed by Marcus Farrar of Chivers Solicitors, and led by Hugh Southey QC.