Gudanaviciene, R (on the application of) v Immigration and Asylum First Tier Tribunal

Factual and Procedural Background

The appeal concerns whether the First Tier Tribunal (FTT) should be ordered to pay costs for a successful judicial review application challenging its refusal to adjourn an appeal. The appellant was convicted of unlawfully wounding her partner and sentenced to imprisonment. The Secretary of State decided to deport her, but after extensive litigation, she was allowed to remain. The appellant, lacking funds, instructed solicitors who sought legal aid funding under the Exceptional Case Funding (ECF) scheme, which was refused by the Legal Aid Authority (LAA). The solicitors applied for judicial review of the funding refusal.

The FTT conducted several case management review hearings (CMRHs) without the appellant's solicitors attending. Despite requests for adjournments pending the judicial review of the funding refusal, the FTT refused to adjourn, stating it was not concerned with funding. The solicitors applied ex parte to the High Court for an adjournment, which was granted by Jay J. Subsequently, the solicitors sought costs against the FTT for the judicial review proceedings, which were refused by the Administrative Court on the basis that costs orders against tribunals require flagrant improper behaviour. Permission to appeal was granted solely on whether this test should be modified in light of subsequent authority.

Following the High Court order, the FTT adjourned the appeal. The appellant's judicial review of the refusal of ECF was successful, leading to legal aid being granted. The appellant's appeal to the FTT was eventually allowed and upheld by the Upper Tribunal despite the Secretary of State's appeal. The FTT had initially refused adjournments citing the overriding objective of timely proceedings and procedural rules.

Legal Issues Presented

1. Whether the First Tier Tribunal should be ordered to pay the costs of the successful judicial review application challenging its refusal to adjourn the appeal.
2. Whether the established test from R (Davies) v Birmingham Deputy Coroner requiring flagrant improper behaviour by a tribunal to order costs should be modified in light of subsequent authority, particularly the approach in R (M) v Croydon London Borough Council.

Arguments of the Parties

Appellant's Arguments

• The appellant's counsel argued that the advent of the Civil Procedure Rules (CPR) and the "new approach" to costs in judicial review cases, exemplified by M, support awarding costs to successful claimants who obtain relief, including against tribunals.
• It was submitted that the normal rule that successful parties recover costs applies equally in public law cases and that the tribunal, as part of the state judicial system, should not be immune from costs liability.
• The appellant relied on dicta from Lord Hope emphasizing the importance of considering the consequences for solicitors conducting publicly funded work and the need to avoid imposing no costs orders unfairly.
• The appellant contended that the test in Davies was outdated and should be reconsidered in light of modern procedural rules and case law.

First Tier Tribunal's Arguments

• The FTT argued that the test in Davies remains binding and that the tribunal did not engage in flagrant improper behaviour or actively resist the judicial review application.
• The FTT emphasized judicial immunity principles, noting that imposing general costs liability on tribunals would represent a significant departure from established law.
• The tribunal highlighted the absence of statutory indemnity for its members against personal liability for costs, unlike coroners, and stressed the lack of separate legal personality for the tribunal.
• The FTT submitted that the approach in M does not address costs orders against tribunals and that the Secretary of State, who was a party to the appeal, did not oppose the judicial review and thus was not liable for costs.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reaffirming the binding authority of Davies, which establishes that costs orders against inferior tribunals are exceptional and require flagrant improper behaviour or active resistance to litigation. The FTT did not appear in the judicial review proceedings, nor was there any claim of improper conduct.

The appellant's argument that the approach in M should extend to tribunals was rejected. The court noted that M involved identifiable government bodies actively participating in litigation, unlike tribunals, which are different in nature and function. The court emphasized that M did not address costs liability of tribunals and did not overrule Davies.

The court further explained that extending the M principle to tribunals would represent a significant departure from judicial immunity principles, potentially exposing tribunal members to personal liability without statutory indemnity. This would be inconsistent with established legal protections and the tribunal's statutory framework.

While acknowledging the appellant's solicitors had a strong interest in recovering costs, the court held that the absence of active participation or flagrant misconduct by the FTT meant the existing test from Davies remains authoritative and applicable.

Holding and Implications

The court’s final decision was to DISMISS THE APPEAL.

The court held that the First Tier Tribunal is not liable to pay costs for the judicial review application challenging its refusal to adjourn the appeal, absent flagrant improper behaviour or active participation in the litigation. The established test from R (Davies) v Birmingham Deputy Coroner remains binding and has not been modified by subsequent authority such as R (M) v Croydon London Borough Council.

The direct effect is that the appellant and her solicitors cannot recover costs from the tribunal in this context. No new precedent was set, and judicial immunity principles concerning tribunals remain intact.