PCSU v Home Secretary: costs denied where claim becomes academic for political reasons

The Court of Appeal has affirmed that claimants in judicial review proceedings may be denied costs even where they achieve their desired outcome, if that result stems from political change rather than the merits of the litigation itself. In Public and Commercial Services Union v Secretary of State for the Home Department [2025] EWCA Civ 1644, the court dismissed an appeal against a costs decision where the incoming Labour government's commitment to repeal contested strike regulations predated the judicial review claim.

The Public and Commercial Services Union challenged the Strikes (Minimum Service Levels: Border Security) Regulations 2023, which empowered the Home Secretary to issue work notices requiring specified border service staff to work during strikes. The union argued the regulations unlawfully interfered with Article 11 ECHR rights to freedom of association. Permission was granted on grounds contending the regulations exceeded statutory powers and breached Convention rights.

The Labour Party, whilst in opposition, had publicly opposed the 2023 Act and pledged in its May 2024 "Plan to Make Work Pay" to repeal the legislation. Following Labour's substantial election victory in July 2024, the new Minister for Migration and Citizenship confirmed in August that the government would repeal the Act through the Employment Rights Bill and would not exercise powers under the regulations in the interim.

The union discontinued its claim but sought costs, arguing it had been "wholly successful" in obtaining repeal of the challenged regulations. The Home Secretary resisted, contending the claim became academic "for political reasons, rather than for reasons connected with the merits of the claim."

The first instance decision

HHJ Jarman KC made no order as to costs, concluding tersely that "the claim became academic for political reasons after a change of government and not because of this claim." The union appealed, arguing the judge failed to address their substantial success, made an unevidenced finding, and gave inadequate reasons.

Court of Appeal analysis

Lord Justice Bean, delivering the leading judgement, acknowledged the constitutional principle that incoming governments cannot be absolved of legal responsibility for predecessor administrations' acts. However, he distinguished this from the causation question relevant to costs.

Applying established authorities including R(M) v Croydon LBC [2012] EWCA Civ 595, the court confirmed that where claims become academic for reasons not attributable to the litigation, there is no prima facie costs entitlement unless the claimant would clearly have succeeded at trial. The court rejected arguments that the Minister's description of the regulations as "unduly restrictive" constituted an admission the claim was legally sound, finding this merely repeated Labour's longstanding policy opposition.

Crucially, Bean LJ accepted that Labour's commitment to repeal the restrictions was sufficiently clear that repeal would likely have occurred regardless of the judicial review. Using terminology from ZN (Afghanistan) v Secretary of State for the Home Department [2018] EWCA Civ 1059, the outcome was achieved for an "extrinsic reason" or, in the words of Males LJ in R (Parveen) v Redbridge LBC [2020] EWCA Civ 194, "would have happened anyway."

The court acknowledged the case was "quite close to the borderline" but found no error of principle or law justifying interference with the judge's discretion. The appeal was dismissed, with Peter Jackson LJ and Elisabeth Laing LJ concurring.

The decision reinforces that causation remains central to costs awards in compromised judicial review claims, even where claimants achieve their substantive objectives.

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