Supreme Court dismisses appeal concerning its role in governing the award of costs in lower courts


The Supreme Court has today dismissed the appeal in R (Gourlay) v Parole Board. This concerned the application of the rule in R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739, whereby courts and court-like bodies that do not actively engage in civil proceedings brought against them can avoid a costs liability.

The appellants advanced a number of arguments concerning the inappropriateness of such a rule, particularly in the modern civil justice landscape. The Supreme Court has not fully dealt with those arguments, in part on the basis that costs and costs practice are predominantly matters for the Court of Appeal, rather than for the Supreme Court. One of the issues to which this gives rise is the way precedents work in costs matters. The Supreme Court has held that decisions such as Davies establish principles which should generally be applied as a matter of practice, and do not decide questions of law. Consequently they fall outside the scope of the rules of precedent laid down in authorities such as Young v Bristol Aeroplane Co Ltd [1944] KB 718.

Hugh Southey QC and Nick Armstrong, instructed by Marcus Farrar of Chivers, acted for the appellant.