£3,695.81 for asking “which court?”

How costs are being used to deter constitutional challenges that ask basic questions about lawful authority

Before Christmas, I reported that the High Court had refused permission for my application for Judicial Review (JR). All I sought was to determine which court, in law, if any, had convicted me of a minor motoring matter. The alleged offence itself is contested, but that is another story.

What mattered for the purposes of the JR was this: I had been presented with 44 different sources, labels, or concepts purporting to describe the judicial authority said to have imposed a fine. It is a basic civil right to know — and to ask — by what authority one is being coerced.

Power must be intelligible and legible to be legitimate.

When dozens of court names proliferate, cannot be traced cleanly back to statute, and no single body will clearly assume responsibility, common sense suggests that there is a fracture in the rule of law that requires examination. The court was therefore presented with a fork in the road:

• either allow the law to be clarified through parallel proceedings, so that any defect could be identified and addressed; or

• decline such clarification, and proceed on the basis that no inquiry into that fracture was necessary.

It chose the latter.

The resulting Order did not address the essence of my argument — namely, that no sealed or authenticated court order had been produced to support enforcement. It showed no visible engagement with my reply to the defence, and it re-characterised my claim into something I had not pleaded. I will examine why the Order is constitutionally concerning in future articles.

What is most troubling, however, is the costs consequence. The refusal was accompanied by a costs order of approximately £3,700 (around US$4,700) — incurred simply for seeking to establish which court had acted, when no court had clearly stepped forward to claim ownership of the purported act.

This is not about refusing to pay costs out of stubbornness. It is about whether the Administrative Court is quietly normalising unlawful and inflated costs claims against litigants in person. The effect is obvious: to deter citizen challenges to mass, automated prosecutions that fail to demonstrate lawful authority.

This article therefore stands as a warning to others considering Judicial Review. The State appears willing to deploy asymmetric resources to financially punish those who assert a basic constitutional right: to know, with clarity and certainty, which arm of the State is acting against them, and by what lawful authority.

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What the Judicial Review asked for

The claim was a modest and tightly confined one. It sought only a temporary stay of enforcement of a fine, on the following bases.

• First, the “court” named on the summons appeared to lack a clear basis in law. I had challenged jurisdiction consistently and promptly throughout the proceedings, yet no authoritative explanation had been provided as to how the named court derived its legal existence or authority.

• Second, no sealed or authenticated court order had been produced to support enforcement. Nor had any statement been provided confirming that no such order existed, nor any written determination addressing the jurisdictional challenges that had been raised.

• Third, access to supervisory jurisdiction had been procedurally obstructed. A properly prepared Judicial Review application filed in May was not issued, and a statutory Case Stated appeal lodged in July was not processed. As a result, the ordinary routes for resolving jurisdictional and enforcement questions were, in practice, unavailable.

The claim did not seek to quash any conviction. It sought only a temporary hold on enforcement so that:

• I would not be forced to contest enforcement action at the same time as pursuing proceedings to determine the underlying lawfulness of so-called “ghost court” prosecutions;

• it could be established, with certainty, whether a court order existed at all — and, if so, which court was the originating authority for the enforcement of the fine;

• access to supervisory jurisdiction could be preserved, recognising that the right to meaningful review and appeal is intrinsic to legality, particularly in the context of criminal convictions.

These are ordinary, orthodox, and well-established uses of Judicial Review. In circumstances of personal grievance — as opposed to a systemic challenge to the attribution of state authority — such an application would ordinarily be regarded as uncontroversial and unremarkable.

What the High Court ordered on costs

Not only was permission refused on the papers, without any oral hearing, but the court went on to make a costs order against me in favour of the Defendant — the Government Legal Department (GLD), acting for the Secretary of State for Justice.

The costs were summarily assessed at approximately £3,700, and were said to arise solely from the preparation of the Defendant’s Acknowledgment of Service and Summary Grounds of Defence.

There was:

• no hearing;

• no attendance;

• no advocacy;

• and no opportunity for adversarial testing of the costs claimed.

The assessment was conducted entirely on paper, on the basis of a unilateral costs schedule submitted by the Defendant, and accepted without explanation.

No reasons were given as to why summary assessment was appropriate in these circumstances, nor why the sums claimed were considered reasonable or proportionate.

This combination — a paper refusal of permission followed immediately by a substantial adverse costs order, imposed without adversarial scrutiny — is unusual.

It also gives rise to a series of anomalies that go to the heart of the costs jurisdiction itself. Those anomalies are not matters of sympathy or discretion. Once examined, they reveal that the costs order rests on foundations far less secure than the formality of the Order suggests.

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The documentary flip-flop

In an earlier order, the court expressly required the production of documents — including material bearing on the existence and provenance of any court order — as intrinsic to determining the issues before it. I spent two weeks collaborating with the Government Legal Department on substantial bundles of evidence and statute. (Credit where due: GLD are experienced professionals at this, and the process was smooth.)

The implication was clear: the lawfulness of enforcement could not be assessed without first establishing whether a valid judicial act existed, and by whom it had been performed.

Yet those documents were never produced.

No sealed order was filed.
No authenticated determination was supplied.
No statement was provided confirming that no such order existed.

When permission was later refused, however, the absence of those documents was treated as immaterial. The court proceeded as though the underlying question — whether any lawful court order existed at all — had either been answered or no longer required an answer.

This is the flip-flop.

What was previously framed as intrinsic to decision was later ignored entirely. The court did not explain why documents once regarded as essential had become irrelevant, nor how enforcement could lawfully proceed in their absence.

That is not a disagreement on the merits. It is a procedural inconsistency that strikes at the intelligibility of the decision-making process itself — and therefore at the legitimacy of imposing deterrent costs.

Once the court treated what it had earlier deemed intrinsic as irrelevant, the costs issue ceased to be routine.

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The baseline

In judicial review, costs before permission are the exception, not the rule.

There is a legitimate role for costs as negative feedback against weak or abusive claims that waste public resources. But that logic applies only where a claim is frivolous, incoherent, or procedurally improper. No such finding was made here. The Defendant’s response was substantive, and the Order contains no suggestion that the claim was abusive or devoid of merit.

The settled position is therefore that pre-permission costs normally “lie where they fall”: whatever a party chooses to spend at that stage is its own responsibility. This principle is applied with particular care where the claim is narrow, raises public law issues, and is brought by a litigant in person — precisely the circumstances of this case.

Departures from that baseline are not neutral. They require justification. Absent such justification, the imposition of adverse costs at the permission stage operates not as compensation, but as deterrence.

That matters, because the costs jurisdiction is not merely administrative. It is one of the mechanisms by which courts regulate access to supervisory jurisdiction. How — and when — it is used sends a signal about which challenges are welcome, and which are to be discouraged.

The violation

Measured against that baseline, what occurred here is not a marginal excess, but a categorical mismatch.

The Judicial Review sought a simple, interim stay of enforcement. Nothing more.

There was:

• no request to quash a conviction;

• no claim for damages;

• no evidential dispute;

• no hearing.

Despite that, the Defendant responded as if facing a full merits challenge to the conviction itself and to the underlying jurisdiction of the Magistrates’ Court.

They instructed external counsel.
They produced extended Summary Grounds addressing issues I did not plead.
They rehearsed substantive jurisdictional and appellate arguments irrelevant to a stay-only application.
They acted as if a contested hearing had occurred — when none had.

The costs claimed reflect that posture. They are not the costs of responding to a narrow, paper-only application for interim relief. They are the costs of running a different case.

The schedule includes time for internal preparation, document review, briefing counsel, extensive correspondence, and even preparation of the costs schedule itself — an item that is never recoverable. Counsel’s fees are claimed despite there having been no hearing, no advocacy, and no grant of permission.

This is not an argument about whether the Defendant incurred these costs. It is about whether it was lawful to pass them on.

Judicial Review costs do not become recoverable simply because the State chose to over-lawyer a modest application. Where the response far exceeds what the claim reasonably required, the excess lies where it falls.

That is the rule. What happened here was the violation of it.

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Proportionality: the figure that should make you pause

The enforcement sum said to be outstanding in my case was £1,574.

The costs summarily awarded against me were approximately £3,700.

In other words, the costs of resisting a stay-only, paper application — brought by a litigant in person — exceeded the underlying enforcement sum by more than two to one.

That ratio matters.

Proportionality in costs is not a matter of etiquette or sympathy. It is a core control mechanism that prevents the coercive power of the State from being amplified through procedure.

When the costs of questioning authority materially exceed the value of the authority being enforced, something has gone wrong.

This is especially so where the application did not seek to undo the enforcement, but merely to pause it pending clarification of the legal basis on which enforcement was said to rest.

What a costs judge should actually allow

Even taking the Defendant’s case at its highest, the recoverable costs in a permission-stage judicial review of this nature are strictly limited.

At most, they would ordinarily extend to:

• modest time spent drafting the Acknowledgment of Service; and

• possibly limited work on Summary Grounds, proportionate to the narrow scope of the claim.

They would not ordinarily include:

• internal solicitor preparation;

• extensive document review;

• briefing counsel for a paper-only determination;

• counsel’s fees in the absence of a hearing or grant of permission;

• duplicated review tasks;

• or time spent preparing the costs schedule itself.

Once guideline hourly rates are applied (and not London rates for a Manchester claim), duplication removed, and non-recoverable items excluded, the lawful recoverable sum falls within a modest range, not remotely approaching the figure awarded.

This is not speculative. It is precisely the analysis that costs judges apply every day. The anomaly here is not that the Defendant incurred costs, but that those costs were summarily transferred to the claimant without scrutiny, despite having been incurred in response to a litigation posture of the Defendant’s own choosing.

Why this is a constitutional issue, not a personal one

This is not about me.

It is about what happens when costs cease to be compensatory and become punitive, particularly in public law. Judicial Review exists to ensure that State power is exercised lawfully, intelligibly, and within jurisdiction. That function depends on the ability of ordinary citizens — including litigants in person — to access the court without facing ruinous financial exposure for raising orthodox questions of authority.

When:

• a narrow, protective Judicial Review is met with an over-lawyered response;

• costs are assessed as if a contested hearing had occurred when none did;

• non-recoverable items are summarily allowed; and

• the resulting costs dwarf the underlying enforcement sum,

the effect is to weaponise costs.

The message sent is not subtle: do not ask difficult questions about the attribution of State power unless you can afford to lose badly — even when you ask them properly, proportionately, and within the rules.

That is how access to supervisory jurisdiction is eroded in practice. Not by dramatic constitutional rupture, but by quiet procedural drift. By turning the costs jurisdiction into a deterrent against scrutiny, rather than a mechanism for fairness.

That is why this costs order matters. Not because of the sum involved, but because of what it signals about who may safely challenge the legality of State action — and at what price.

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What happens next

The costs issue has not yet been finally determined.

Under the court’s own procedure, the order is subject to reconsideration on the papers, following the filing of a notice of objection — which I have already done.

At that stage, the court has a number of orthodox options open to it, other than the status quo.

• It may conclude that this was a case in which costs should simply lie where they fall, given the narrow and protective nature of the application, the absence of any hearing, and the procedural anomalies already described.

• Alternatively, it may substantially reduce the sum claimed, limiting recovery to those items that are properly recoverable at the permission stage and disallowing the remainder.

Either outcome can be reached on the papers. Neither requires further litigation or escalation. What is required is a careful application of settled costs principles to the actual procedural reality of the case.

However the issue is resolved, the decision will have implications beyond the immediate parties. Summary costs orders at the permission stage are increasingly common.

How rigorously they are scrutinised matters — not just for this case, but for the integrity of the costs jurisdiction more generally.

The quiet question for readers to ponder

This case is not about a litigant refusing to accept an adverse outcome. It is about a litigant being criticised for failing to exhaust remedies that he demonstrably attempted to use — and was prevented from completing.

I followed the rules.

I pursued Judicial Review pre-trial only after previous efforts to obtain a written ruling on jurisdiction failed. I paid the required fees, absorbed months of work, and incurred the administrative and logistical costs of preparing and shipping a full High Court bundle from the United States. That application was never issued, through no fault of my own.

I then pursued the statutory Case Stated route post-trial, which is expressly designed to be the primary and cost-free mechanism for resolving jurisdictional and enforcement questions arising from criminal proceedings. That route was not determined, not refused, and not progressed. Pre-action correspondence and formal complaints were ignored.

I also applied under section 142 of the Magistrates’ Courts Act 1980, seeking correction of error. In response, the judge expressly indicated that the appropriate forum for resolving the issues raised was the High Court.

Only after that sequence — with statutory remedies stalled in practice, and the Magistrates’ Court itself directing me to the High Court — did I bring the present Judicial Review. Even then, the claim was confined to narrow, protective relief: a temporary stay of enforcement pending clarification of the legal authority said to justify it.

That application was refused on the papers, without a hearing, by an Order that did not address the relief sought, did not engage with the absence of any court order authorising enforcement, and re-cast the claim into issues I had not pleaded.

Having done all of that, the Order then criticised me for failing to exhaust alternative remedies.

It is that inversion — being faulted for not completing routes that were procedurally closed, and for following a course to which I was expressly directed — that gives rise to the deeper concern.

The quiet question for readers is this: what does the rule of law mean, if those who attempt to follow its prescribed routes in good faith can be ignored, redirected, and then financially penalised for doing so?