Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors

Factual and Procedural Background

These appeals concern decisions on costs made by High Court Judges in immigration judicial review cases resolved by consent orders without contested hearings. The appellants sought permission to work or indefinite leave to remain in the United Kingdom, based on Immigration Rule 360 and article 11 of the Reception Directive. Relief was granted after delays, partly due to the Secretary of State awaiting a Supreme Court decision in a related case concerning rights of repeat asylum seekers. Following the grant of relief, the appellants withdrew their claims by consent. The judges declined to award costs to the appellants, leading to these appeals.

Legal Issues Presented

1. Whether the High Court judges erred in law by refusing to make costs orders in favour of appellants following consent orders granting relief without contested hearings.
2. Whether the test for awarding costs in such cases, as stated in R (Boxall) v Waltham Forest LBC, requires modification in light of current procedural developments including the Jackson Report and Practice Direction (Pre-Action Conduct) Protocols.
3. Whether this Court has jurisdiction to hear appeals against costs decisions made on the basis of written submissions under consent orders.
4. The appropriate timing for assessing entitlement to costs in judicial review proceedings resolved by consent.

Arguments of the Parties

Appellants' Arguments

• The judges incorrectly applied the principles from Boxall by not awarding costs despite the appellants obtaining the relief sought.
• The test from Boxall should be modified to reflect procedural changes, including the Practice Direction (Pre-Action Conduct) Protocols and recommendations from the Jackson Report, which suggest a presumption in favour of costs where claimants comply with the Protocol and defendants concede after issue.
• Compliance with the Pre-Action Protocol should be the starting point for costs decisions, with defendants bearing the burden of showing good reason for non-compliance.
• The current approach disproportionately disadvantages publicly funded litigants and their lawyers, threatening access to justice and the viability of public law work.
• The Secretary of State failed to comply with the Protocol by not responding adequately or seeking extensions, effectively encouraging delay and increasing costs.

Respondent's Arguments

• The Boxall principles remain appropriate and fit with the Civil Procedure Rules; no compelling reason exists to replace them.
• Compliance with the Pre-Action Protocol is relevant but not determinative; costs decisions require a broad judicial discretion considering all circumstances.
• The grant of relief was not "plain and obvious" at the start of proceedings due to pending appeals and unsettled law, justifying the refusal of costs orders.
• The Secretary of State may settle claims for pragmatic reasons and retain discretion under the Directive to impose conditions on access to the labour market.
• The high volume and limited resources of the United Kingdom Border Agency justify a cautious approach to costs and litigation conduct.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (Boxall) v Waltham Forest LBC (2000)	Guidelines on costs orders where judicial review claims are resolved without trial; fallback position is no order unless good reason exists.	Formed the core framework for assessing costs in consent order cases; court affirmed but refined its application considering procedural changes.
ZO and Others v Secretary of State for the Home Department [2010] UKSC 36	Clarified entitlement to work rights for repeat asylum seekers, affecting timing and merit of claims.	Supreme Court ruling influenced the timing of relief and costs decisions; refusal to delay relief until Supreme Court decision emphasized.
R (On the application of Scott) v London Borough of Hackney [2009] EWCA Civ 217	Application of Boxall principles; discretion in costs decisions and relevance of compliance with Pre-Action Protocol.	Reinforced the need for reasonable and proportionate analysis in costs decisions and acknowledged importance of Protocol compliance.
Mendes v London Borough of Southwark [2009] EWCA Civ 594	Confirmed jurisdiction to hear appeals against High Court costs orders made on papers; costs awarded where claimant clearly successful.	Supported this court's jurisdiction in the present appeals and the principle that costs should reflect success at the time of costs decision.
R (Jones) v Nottingham City Council [2009] EWHC 271 (Admin)	Confirmed that costs decisions on the papers are final and appealable to the Court of Appeal.	Distinguished from present case; did not exclude appeal rights here.
Re appeals by Governing Body of JFS [2009] 1 WLR 2353	Considered consequences of costs orders for publicly funded litigants and their solicitors.	Supported the court’s recognition of the impact of costs orders on publicly funded legal representation and the need for careful analysis.
Coyne v DRC Distribution Ltd [2008] EWCA Civ 488	Wide judicial discretion in costs decisions; oral evidence may be appropriate in complex cases.	Referenced regarding the scope of discretion available to judges in costs decisions.
R v Liverpool City Council ex parte Newman (1992) 5 Admin LR 669	Burden on claimant to justify departure from usual costs rules on discontinuance.	Used by appellants to draw analogy with costs presumptions in judicial review claims.

Court's Reasoning and Analysis

The court analyzed the application of established principles from Boxall, reaffirming that the court has discretion to make costs orders when judicial review claims are resolved without trial but parties dispute costs. The court emphasized that the overriding objective is to do justice without unnecessary use of court resources. The judges below had applied the "plain and obvious" test to determine if the claimant was clearly entitled to relief at the time proceedings were issued or withdrawn, often concluding that the cases were not "plain and obvious" until after the Supreme Court decision.

The Court of Appeal rejected the view that relief should be withheld pending the Supreme Court ruling once the Court of Appeal had decided the law, holding that the Secretary of State was obliged to grant relief based on the Court of Appeal decision and could not delay on pragmatic grounds. The court held that the relevant date for assessing costs entitlement is the date of the costs decision, but the entire litigation conduct must be considered, including compliance with the Pre-Action Protocol.

The court stressed the importance of compliance with the Pre-Action Protocol as a significant factor in costs decisions, consistent with the Jackson Report’s recommendations. The burden lies on defendants to justify any departure from the general rule that the unsuccessful party pays costs, especially where claimants have complied with the Protocol and obtained relief.

The court rejected the notion that public authorities should be treated differently due to resource constraints or the public funding nature of claimants, emphasizing that costs orders should not simply transfer funds between public bodies. The court expressed concern about defendants settling claims for "purely pragmatic reasons" without proper justification, cautioning that such reasons require clear explanation and scrutiny.

Overall, the court concluded that the judges below had erred in refusing costs orders and that the circumstances of each case required careful analysis rather than defaulting to no order. The court declined to amend the Boxall principles mechanically, preferring a principled, case-specific approach that incorporates compliance with Pre-Action Protocols and the broader context of the litigation.

Holding and Implications

The appeals are allowed and costs are ordered against the Secretary of State in each case.

The court’s decision directly reverses the refusals of costs orders in these immigration judicial review cases resolved by consent. It clarifies that where claimants have complied with the Pre-Action Protocol and obtained relief, defendants bear a heavy burden to justify non-payment of costs. The ruling emphasizes that public authorities cannot evade costs liability on grounds of resource constraints or pragmatic settlement decisions without clear justification. No new legal test replaces Boxall, but the court endorses a nuanced application that reflects procedural developments and promotes fairness. The decision reinforces the importance of early and proper conduct in public law litigation and supports access to justice by protecting costs recovery for publicly funded claimants. No broader precedent beyond these principles and procedural clarifications is established.