PI Brief Update

A Conflict of Schedules: Court of Appeal Rules on Failure to File a Costs Schedule - Georgina Pressdee, Temple Garden Chambers

19/02/26. On 19 December 2025, Lord Justice Bean dismissed the Claimant’s appeal in The King (on the application of Public and Commercial Services Union) v The Secretary of State for the Home Department [2025] EWCA Civ 175 in a unanimous judgment on behalf of the Court of Appeal. The judgment confirms that a failure to file a costs schedule does not preclude the successful party to an appeal from obtaining an order for costs.

Background

The underlying Claim was a judicial review of the Strikes (Minimum Service Levels: Border Security) Regulations 2023 on the grounds of Article 11 ECHR (freedom of assembly and association) which was discontinued following the Regulations’ repeal. The High Court made no order as to costs, which the Claimant appealed. The appeal was dismissed on 16 December 2025 and the Defendant sought an order for its costs of the appeal, to be assessed if not agreed. No costs schedule was filed by either party in advance.

Submissions

The Claimant contended that the general rule is that the Court must summarily assess costs at the conclusion of any hearing other than a fast-track trial which has lasted not more than one day and that it is the duty of the parties to assist the Judge in making that assessment by preparing a written statement of their costs (Practice Direction 44, paras 9.2 and 9.5). The Claimant relied on two authorities:

1. The judgment of Mostyn J in R (Kuznetsov) v Camden LBC [2019] EWCA 3910 (Admin) in support of the proposition that in the absence of a schedule there should be no order as to costs.
2. (In the alternative) Wheeler v Chief Constable of Gloucestershire Constabulary [2013] EWCA Civ 1791 in support of the proposition that if detailed assessment was ordered in the absence of a schedule, the receiving party should bear the cost of that exercise.

Ruling: Appeal Dismissed

The Court was not persuaded by either of the authorities cited on the basis that views expressed in the Administrative Court are not a guide to practice in the Court of Appeal (Civil Division). Lord Justice Bean remarked that it was not uncommon for judgment to be reserved in a full day appeal and therefore for no costs schedules to be served. Where a schedule is clearly required by the rules, it must be filed, but even when it has not been served that in of itself is not a reason to deprive the successful party of an order for costs to be assessed in detail if not agreed.

The Court was particularly unimpressed by the reliance on Wheeler, which had been referred to via a footnote in the book Costs & Funding following the Civil Justice Reforms: Questions and Answers. Lord Justice Bean found that the transcript did not contain any decision about costs.

The Claimant was ordered to pay the Defendant’s costs accordingly, to be assessed in detail on the standard basis if not agreed.

Comment

This judgment is as logical as it is brief. Where it is expected that judgment will be reserved and therefore costs dealt with at a further hearing, there would be little sense in demanding that further billable hours be expended on drafting costs schedules which may become redundant due to the outcome of the appeal. That said, if a party is confident about both their prospects of success and of an ex-tempore judgment, serving a schedule can save costs for all involved by obviating the need for a further hearing.

Image ©iStockphoto.com/AndreyPopov