Successful litigants who have failed to file a costs schedule (or perhaps more frequently, litigants that are unable to prove to the court’s satisfaction one was filed and served when it has not made it’s way through the court office to the Judge’s file) may wish to note the decision of Bean LJ in Public and Commercial Services Union, R (On the Application Of) v Secretary of State for the Home Department (Re Costs of the Appeal) [2025] EWCA Civ 1759.

Judgment in this appeal was handed down in December; this recent decision concerned costs only. The unsuccessful applicant, the Public and Commercial Services Union (PCSU), sought to deny the respondent its costs. It relied on two provisions of the CPR - PD44 9.2 and 9.5 - and two authorities.

44PD9.2 says (in part) that "[t]he general rule is that the court should make a summary assessment of the costs... at the conclusion of any.. hearing [other than a fast-track trial], which has lasted not more than one day".

44PD9.5 states:

(1) It is the duty of the parties and their legal representatives to assist the judge in making a summary assessment of costs in any case to which paragraph 9.2 above applies...

(2) Each party who intends to claim costs must prepare a written statement of those costs...

PCSU's position was that, read together, the upshot of these provisions was that any party seeking its costs at the end of such a trial must have filed a statement of costs in the form of an N260. The respondent had not done so; therefore its costs should be disallowed.

The first of the authorities cited by PCSU was R (Kuznetsov) v London Borough of Camden [2019] EWHC 3910 (Admin). Bean LJ disposed of it in very short order: "Views expressed in the Administrative Court are not a guide to practice in this court."

The second authority, Wheeler v Gloucestershire Constabulary [2013] EWCA Civ 1791, had the apparent imprimatur of 'Costs & Funding following the Civil Justice Reforms: Questions and Answers'. According to that, "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" [emphasis added].

Accordingly, PCSU's fallback position was that the respondent should receive its costs but should pay for the assessment.

Bean LJ promptly dispatched that argument too. He noted that the only reference to costs in the transcript of Wheeler as recorded on the National Archive website, Bailii, and Westlaw was a single sentence in the latter. In the absence of the text of the decision, he simply filed the decision away in a box marked "very unusual order" and reiterated that the lack of a costs schedule was not, in itself, a bar to the successful party in an appeal receiving its costs.

While this decision offers hope to N260-less parties, it is no Get-Out-Of-Jail-Free Card. The position of a successful respondent that has not filed a statement of costs remains equivocal. Such a party should not despair, but neither should it float. Parties would be well advised - as always - to follow the rules!

Calum Proctor