Public and Commercial Services Union, R (on the application of) v The Secretary of State for the Home Department (Supplementary Judgment: Costs of the Appeal)

We handed down judgment in this case on 16 December 2025. PCSU’s appeal against the order of His Honour Judge Jarman KC was dismissed. In those circumstances the Respondent asks for an order that the Appellant pay the costs of the appeal, to be assessed in detail if not agreed. No costs schedule was served by the Respondent at or before the hearing.

Mr Thorold, for the Appellant, resists such an order. His first submission is that Practice Direction 44 PD 9.2 and 9.5 provide that the general rule is that the court must make a summary assessment of costs at the conclusion of any hearing other than a fast-track trial which has lasted not more than one day (9.2) and that it is the duty of the parties and their legal representatives to assist the judge in making a summary assessment of costs by preparing a written statement of such costs. He submits firstly that since no costs schedule was served there should be no order as to costs at all. He cites in support a decision of Mostyn J in the Administrative Court in R (Kuznetsov) v Camden LBC [2019] EWCA 3910 (Admin); [2020] Costs L. R. 1113. Alternatively, if we were minded to order a detailed assessment then he submits that the Respondent should be required to pay the costs of that exercise in any event. The authority for that is a statement and footnote in the book Costs & Funding following the Civil Justice Reforms: Questions and Answers. This tells us that in Wheeler v Chief Constable of Gloucestershire Constabulary [2013] EWCA Civ 1791, “where neither party had filed a statement of costs in advance of an appeal, the upshot for the successful party was an order for costs to be the subject of detailed assessment but with the receiving party to pay the costs of those proceedings”.

We are not persuaded by either of these authorities. Views expressed in a case in the Administrative Court are not a guide to practice in this court. So far as this court is concerned, it is not uncommonly the case that in an appeal which is listed for a full day and in which it is expected that judgment will be reserved, no costs schedule is served by one or both parties. Where it is clear that a schedule of costs is required by the rules, it must be filed; buteven where one has not been served, that has not in our experience been held to be a reason in itself for depriving the successful party of an order for costs to be assessed in detail if not agreed.

Turning to the textbook reference to Wheeler, the transcript of this court’s decision on the substantive appeal (which was about contributory negligence in a road traffic accident case) does not, as published either on the National Archive website or on Bailii, contain any decision about costs. There is a single sentence mention of it on Westlaw. Mr Thorold was unable to supply the text of the decision. It may be that there were special factors in the Wheeler case justifying what appears to each of us to have been a very unusual order. Where an order is made in this court for one party to pay the other’s costs to be assessed in detail if not agreed, the way that either side can protect its position in relation to the cost of the assessment process itself is to make an appropriate offer as to what it would be willing to accept or to pay (as the case may be), which can be shown to the costs judge at the end of the process if it turns out to have been an effective offer.

Accordingly, our order will simply be that PCSU must pay the Secretary of State’s costs in this court to be assessed in detail on the standard basis if not agreed.