JE v Secretary of State for the Home Department

Factual and Procedural Background

The Appellant seeks an order under rule 52.9A of the Civil Procedure Rules in an appeal against an order of the Upper Tribunal. The application was launched on 18th February 2014, with skeleton arguments exchanged between the parties shortly thereafter. The appeal was listed for hearing on 25th February 2014. The Appellant requested an order that the Respondent pay reasonable incurred disbursements regardless of the outcome, prevent the Respondent from recovering costs against the Appellant except in cases of misconduct, and that usual costs rules apply if the Appellant is successful in whole or part.

Legal Issues Presented

1. Whether the court has the power under rule 52.9A of the Civil Procedure Rules to make the one-way costs shifting order sought by the Appellant.

Arguments of the Parties

Appellant's Arguments

• The Appellant, through counsel, argued that rule 52.9A empowers the court to make a one-way costs shifting order as requested.
• Particular reliance was placed on the last seven words of rule 52.9A(1) to support this interpretation.

Respondent's Arguments

The opinion does not contain a detailed account of the Respondent's legal arguments beyond the exchange of skeleton arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court analysed rule 52.9A in the context of the Civil Litigation Costs Review Final Report (January 2010) and the legislative intent behind the rule's introduction on 1st April 2013. The phrase "recoverable costs of an appeal" was interpreted as referring to costs recoverable by the winning party, regardless of which party that may be. The court emphasised that rule 52.9A is designed to maintain a consistent "no costs" or "low costs" regime on appeal, mirroring the restrictions at first instance, rather than to facilitate one-way costs shifting in favour of one party.

The court further noted three supporting considerations: (1) the rule applies where all parties face the same cost restrictions; (2) the factors to be considered under paragraph (2) of the rule relate to whether or not to maintain a "no costs" or "low costs" regime; and (3) separate rules exist for qualified one-way costs shifting, indicating that rule 52.9A does not cover such orders.

The court stressed the importance of timely applications under rule 52.9A so that parties understand the applicable costs regime early in proceedings. It rejected the Appellant's late application and the fundamental misunderstanding of the rule's scope.

Holding and Implications

The court DISMISSED the application for an order under rule 52.9A.

The direct effect is that the Appellant’s request for a one-way costs shifting order was refused, as the court found no power under the rule to grant such relief. The ruling clarifies the proper interpretation and application of rule 52.9A, emphasizing that it does not permit one-way costs shifting and that applications under this rule must be made promptly. No new precedent was established beyond this clarification.