The High Court has declined to reduce the University of Sussex’s costs after its successful judicial review challenge involving the Office for Students (OfS), while also refusing to order the Free Speech Union (FSU) to pay the University’s costs of the intervention.
What was the costs dispute?
In The King (on the application of the University of Sussex) v Office for Students [2026] EWHC 2708 (Admin), handed down on 23 October 2026, Mrs Justice Lieven considered two questions following the earlier judgment in the University’s judicial review proceedings.
The first was whether the OfS should pay all of the University’s costs or whether those costs should be reduced by 10% to reflect grounds on which the regulator had succeeded. The second was whether the FSU, which intervened in the proceedings, should be ordered to pay the University’s costs attributable to that intervention.
The University had succeeded on the large majority of its case, and the court had quashed the decision in respect of both breaches found. However, the OfS had succeeded on Ground Two, concerning the extent of the Visitor’s jurisdiction, and on three other, more limited grounds.
Why was no reduction made?
The OfS accepted that costs should generally follow the event, but argued that a 10% reduction was appropriate because it had succeeded on several grounds. It also criticised the University’s position on the Visitor’s jurisdiction, including its reliance on historical materials and a change in position during oral argument.
Mrs Justice Lieven did not accept that a reduction was justified. She considered the Visitor’s jurisdiction issue important in the context of a relatively new statutory scheme and a complex regulatory framework, with no directly applicable previous authority. Permission had been granted to argue the point, and the court considered it properly arguable.
“I do not consider it would be correct to reduce the University’s costs.”
The judge acknowledged that there had been oddities and changes of position in both parties’ cases. Taking account of the University’s overall success and the arguable nature of the issue, she concluded that its costs should not be reduced.
Could the Free Speech Union be ordered to pay costs?
The University sought an order requiring the FSU to pay costs associated with its intervention, relying on section 87 of the Criminal Justice and Courts Act 2015. That provision allows costs to be ordered against an intervener in specified circumstances, including where its submissions have not significantly assisted the court, have addressed unnecessary matters, or where the intervener has behaved unreasonably.
The FSU argued that the statutory power was limited to costs incurred as a result of its involvement in the relevant stage of proceedings. The judge agreed that costs incurred before the FSU was permitted to intervene were outside the scope of the provision. That included costs incurred in opposing its application to intervene.
The court then considered whether the statutory conditions for an order had been met. It rejected the argument that the FSU’s submissions, taken as a whole, had not been of significant assistance or that they related to matters that should not have been considered.
Why were the intervention submissions considered helpful?
The FSU addressed the meaning of “freedom of speech within the law” and the relevance of Convention rights when assessing whether an institution had taken reasonably practicable steps to secure lawful speech. The court considered the first issue important to the wider context of the case, particularly given its implications for the higher education sector and the limited previous case law.
Although the court did not ultimately need to determine some arguments in detail because the principal parties had reached agreement on aspects of the issue, Mrs Justice Lieven considered the FSU’s submissions useful in explaining the breadth of the questions and their potential implications under Article 10 of the European Convention on Human Rights.
The judge also rejected the suggestion that the FSU had acted unreasonably. She described its approach as proportionate and focused, noting that disagreement with an intervener’s arguments does not, by itself, mean its conduct was unreasonable.
In any event, the judge found exceptional circumstances under section 87(7) that made a costs order inappropriate. The case raised issues of broad public concern about the OfS’s regulatory powers and freedom of speech in higher education. Hearing a range of submissions helped the court consider both the specific arguments and the wider context.
What does the ruling mean for judicial review cases?
The ruling illustrates that a party’s partial success does not automatically lead to a percentage reduction in costs. The court will consider the overall outcome, the importance and arguability of the issues, and the circumstances of the litigation before deciding what costs order is appropriate.
It also clarifies that costs against an intervener under section 87 must be linked to the stage in which the intervener participated and must satisfy the statutory conditions. Submissions that are ultimately unsuccessful may still assist the court by explaining the wider legal and practical context, particularly in cases of public importance.
The decision is a costs judgment only. It addresses the allocation of costs following the earlier judicial review outcome, rather than determining the underlying substantive challenge afresh.
Frequently asked questions
Did the University of Sussex receive all its costs?
The court refused the OfS’s request for a 10% reduction. The judgment addressed the costs order following the University’s overall success in the judicial review.
Why did the court refuse to reduce the University’s costs?
The University had succeeded on the large majority of its case, and the court considered the Visitor’s jurisdiction issue important and properly arguable despite finding against the University on that point.
Was the Free Speech Union ordered to pay the University’s costs?
No. Mrs Justice Lieven declined to make a costs order against the FSU, finding that the relevant statutory conditions were not established and that exceptional circumstances also justified refusing an order.
What law governs costs orders against interveners?
Section 87 of the Criminal Justice and Courts Act 2015 sets out the circumstances in which a court may order an intervener to pay specified costs arising from its involvement in a stage of judicial review proceedings.
When was the costs judgment handed down?
The judgment was handed down on 23 October 2026.