Neil Davies and Tom Clinton examine Judicial Appointments Commission v Choudhury, where the First-tier Tribunal refused a costs application while nevertheless characterising some allegations against the JAC as unreasonable.
The authors agree with the costs outcome but question that reasoning, stressing that unsuccessful allegations of dishonesty or misconduct are not automatically unreasonable; what matters is whether there was a reasonable explanation for making them. They also challenge reliance on distress caused to JAC staff, arguing that public authorities should tolerate stronger criticism because accountability is inherent in public office. Crucially, the tribunal found no causal connection between the language used and the JAC’s expenditure: substantially the same defence costs would have arisen regardless of tone.
Davies and Clinton therefore warn against allowing costs rules to become punitive measures against forceful expression rather than compensation for expenditure caused by unreasonable conduct.
