AC-2024-LON-000883 - [2025] EWHC 2019 (Admin)

In its judgment, SIAC recognised that its jurisdiction was entirely statutory. It was therefore necessary to ascertain whether there was anything in the SIAC Act which conferred on SIAC the power to award costs in favour of an applicant where the Secretary of State had withdrawn the decision under review (paras 9 and 38 of the judgment).

SIAC undertook this exercise by considering first of all whether it had the power to award costs where an applicant is successful such that the decision under review is set aside. SIAC held that section 5 of the Act was not the source of any such power because the Rules were “silent about costs” (para 38 of the judgment). Section 2D(3) did not contain any power to award costs because its function was to specify the principles that must be applied to ascertaining the merits of the application for review (para 39 of the judgment).

Focusing on section 2D(4), SIAC held that the subsection was drafted in “extremely wide” terms, as it permitted SIAC to make any order that the High Court may make in judicial review proceedings. It followed that SIAC had jurisdiction to grant declaratory relief and make a quashing order in the same way that the High Court may grant such relief under section 31 of the Senior Courts Act 1981 (“the 1981 Act”). Just as section 31 of the 1981 Act was “incorporated by reference” in section 2D(4) of the SIAC Act, there was no reason why a power to award costs was not incorporated by reference to section 51 of the 1981 Act which confers a discretion on the High Court to award costs (para 39 of the judgment).

SIAC went on to hold that the natural and ordinary meaning of the words “make any such order” was wide enough to cover an order for costs. The new review jurisdictions in sections 2C-2F were intended to be based on the application of judicial review proceedings “from cradle to grave.” Parliament cannot have overlooked that costs are payable in judicial review proceedings (para 42 of the judgment).

SIAC acknowledged that, as section 2D(4) was concerned only with SIAC’s powers when it decided to set aside a decision, the incorporation of a costs power would mean that only an applicant (and not the Secretary of State) could recover costs if successful. SIAC held that the “probable reason” for this anomaly was that “Parliament thought that in a procedure which is so heavily dependent on CLOSED material it would be unfair to subject an applicant to a further possible penalty” (para 46 of the judgment). There was “no reason of purpose and/or policy why SIAC should not possess all the powers of the High Court in these circumstances” (para 47 of the judgment). SIAC had, therefore, the jurisdiction to award costs to a successful applicant.

Having considered the case of a successful applicant, SIAC went on to consider whether it had a costs power in cases where the Secretary of State had, as in FGF’s case, withdrawn the decision under challenge. SIAC held that it would be unappealing if costs could be awarded where an applicant succeeded but could not be awarded if the Secretary of State withdrew a decision. It would lead to the anomaly that the Secretary of State could withdraw a decision part-way through a SIAC hearing when she knew that she would be likely to lose (para 50 of the judgment).

SIAC did not regard the terms of rule 11A as a bar to its jurisdiction. As we have set out above, rule 11A(2) requires an application for review to be treated as having been withdrawn if the Secretary of State notifies SIAC that the decision under challenge has been withdrawn. Rule 11A(3) requires SIAC to serve notice that the application has been recorded as “having been withdrawn.” SIAC held that it retained a costs jurisdiction even after an application has been withdrawn, as follows:

“52.

One needs to be clear what SIAC is doing when notified by [the Secretary of State] that the relevant decision has been withdrawn. SIAC still has to do something which brings the proceedings to an end, as does the Administrative Court when notified that the decision-maker has withdrawn the decision at issue. There may be further consequential matters to consider such as the continuation of an anonymity order. The case remains on SIAC’s books until it has formally been brought to an end by the service of the prescribed notice. In serving that notice it is therefore important to recognise that SIAC makes a judicial decision.

53.

In the Administrative Court the parties may serve a consent order relating to the underlying decision but the successful party may invite the issue of costs to be determined. That often happens, and no one could doubt that jurisdiction exists. Mr Armstrong is right to seek to draw as complete a parallel as possible with judicial review proceedings.”

SIAC went on to conclude that where the decision had been withdrawn, it had the power to award costs in the same way as if the decision had been set aside. It proceeded to order that the Secretary of State pay FGF his costs in the following terms:

“1.

The [Secretary of State] shall pay [FGF’s] reasonable costs of both (a) the review of the decision dated 16 February 2022 and (b) the determination of the costs liability, to be subject to a detailed assessment on the standard basis if not agreed.

2.

Any such detailed assessment to take place in the High Court.”

The question of costs in SIAC has been considered to some degree in a number of previous cases, to which we now turn.