Factual and Procedural Background
The Appellant is a Palestinian national whose asylum and humanitarian protection claim lodged in December 2010 was rejected by the Secretary of State for the Home Department ("SSHD") in September 2015. The Appellant appealed to the First-tier Tribunal ("FTT"), which partially allowed the claim related to humanitarian protection but rejected the asylum claim. Both parties sought permission to appeal ("PTA") to the Upper Tribunal ("UT") on different aspects of the FTT decision. The FTT granted limited PTA in May 2016. The Appellant applied to amend and extend grounds of appeal, which was refused by the UT. The Appellant then sought permission to issue judicial review ("JR") proceedings against that refusal. The SSHD did not lodge an acknowledgment of service but took a procedural stance based on settled law.
Permission to JR was refused by the Administrative Court, but the Appellant was granted permission to appeal that refusal. The appeal was to be heard with the substantive appeal on a "rolled up basis." Due to procedural inactivity, the refusal of permission to amend was quashed by the Administrative Court in April 2018, without an order as to costs. The Appellant applied to vary this order to recover costs, which the SSHD opposed except for detailed assessment of legal aid costs. The judge ordered detailed assessment but declined to award costs against the SSHD, reasoning that the SSHD was an interested party, not a defendant, and had not participated in the litigation. This order was made before the Court of Appeal decision in R (Faqiri) v Upper Tribunal (Immigration and Asylum Chamber) ("Faqiri").
Subsequently, the Appellant was granted leave to appeal the costs order, and the SSHD filed a Respondent’s Notice seeking to treat the costs of the Administrative Court proceedings as costs in the appeal before the UT. The appeal was adjourned to consider a jurisdictional issue raised late by the Appellant. Meanwhile, the substantive appeal was resolved by withdrawal of both parties’ appeals and the Appellant’s leave to remain was confirmed.
Legal Issues Presented
- Whether the Administrative Court had jurisdiction to make a costs order against the SSHD in CPR 54.7A judicial review proceedings when the SSHD was an interested party, not a defendant, and had not actively participated in the proceedings.
- Whether costs incurred in CPR 54.7A proceedings can be treated as "costs in the appeal" before the Upper Tribunal, despite the different costs regimes and jurisdictional boundaries.
- Whether a contingent costs order, whereby costs are payable only if the claimant ultimately succeeds on appeal, is lawful and appropriate in this context.
- The proper procedural approach to awarding costs in judicial review proceedings linked to appeals before the Upper Tribunal, including whether such costs should be transferred to the UT for determination.
Arguments of the Parties
Appellant's Arguments
- Costs in one set of proceedings cannot be recovered in another; CPR 54.7A proceedings and UT appeals are distinct and require separate costs assessments.
- The CPR 54.7A proceedings are a precondition for UT appeal but not "of and incidental to" the appeal costs, so costs cannot be transferred or combined.
- Different costs regimes apply to CPR 54.7A and UT proceedings, with the UT regime being more restrictive, making contingent costs orders effectively worthless for successful claimants.
- Transferring costs issues risks the UT being a judge in its own cause, as the SSHD often supports the UT decision and is unlikely to be found unreasonable.
- Successful claimants in judicial review proceedings should be awarded costs to encourage access to justice and sustain publicly funded legal representation.
- Relied on authority that costs orders must be distinct for each proceeding and cannot cross jurisdictional lines absent express statutory provision.
Secretary of State for the Home Department's Arguments
- Disputes the existence of any jurisdictional impediment to making contingent costs orders as in Faqiri, where costs of CPR 54.7A proceedings were treated as costs in the UT appeal.
- Argues it is common for appellate courts to order costs of appeal to be costs in the rehearing, supported by authority and ordinary language interpretation.
- Contends the difference in costs regimes arises from Parliamentary intent to restrict costs in Tribunal proceedings, not from jurisdictional barriers.
- Maintains that the Administrative Court was entitled to expect a fair approach by the UT and that it would not remit hearings if Tribunal misconduct justified CPR 54.7A success.
- Challenges the Appellant's claim that immediate costs awards should be made upon permission to appeal, emphasizing the need to await ultimate outcome.
- Notes that the CPR 54.7A procedure is designed to be straightforward and low cost, and that legal aid rates have not impeded justice in this context.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R (Faqiri) v Upper Tribunal (Immigration and Asylum Chamber) [2019] EWCA Civ 151 |
Confirmed that costs orders can be made in CPR 54.7A proceedings in favour of a successful claimant against the SSHD, an interested party, even without active participation. |
Served as the key authority on contingent costs orders and the possibility of treating costs in CPR 54.7A proceedings as costs in the UT appeal. |
| R (on the application of Gudanaviciene) v Immigration and Asylum FTT [2017] EWCA Civ 352 |
Held that the SSHD as an interested party who took no active steps is not liable for costs. |
Initially cited to refuse costs against SSHD, but distinguished post-Faqiri. |
| R (Cart & ors) v the Upper Tribunal [2011] UKSC 28 |
Defines the procedure for judicial review of UT decisions refusing permission to appeal (CPR 54.7A). |
Supported SSHD’s procedural stance and formed the basis for the CPR 54.7A proceedings. |
| Plevin v Paragon Personal Finance Ltd (No 2) [2017] 1 WLR 1249 |
Clarified that trial and appeals constitute distinct proceedings for costs purposes and require separate assessments. |
Supported the Appellant’s argument on the distinctness of CPR 54.7A and UT appeal proceedings regarding costs. |
| John Romans Park Homes Ltd v Hancock (Claim no. C00WY133) |
Held that costs of proceedings in one jurisdiction (FTT) could not be treated as incidental to proceedings in another (County Court). |
Used to argue against transferring costs of CPR 54.7A proceedings to UT appeals. |
| Darroch v FA Premier League Ltd [2017] 4 WLR 6 |
Confirmed that costs of one set of proceedings are not "of and incidental to" costs of another distinct proceeding. |
Supported the jurisdictional argument against cross-jurisdictional costs orders. |
| Thapa and others (Costs: General Principles; s 9 review) [2018] UKUT 54 (IAC) |
Confirmed that the power to award costs in UT proceedings is to be exercised with significant restraint and differs fundamentally from courts. |
Supported the argument that costs orders in UT appeals are exceptional and that contingent costs orders may be ineffective. |
| R (M) v Croydon London Borough Council [2012] 1 WLR 2607 |
Explained the principled basis for costs awards and that generally costs follow the event. |
Supported the Appellant’s position on awarding costs to successful parties in judicial review proceedings. |
| AN (Afghanistan) v SSHD [2012] EWCA Civ 1333 |
Addressed public interest in awarding costs to successful claimants in fundamental rights cases to avoid deterrence. |
Supported the Appellant’s argument on public interest and access to justice. |
| R (Rahman & Ors) v SSHD [2018] EWCA Civ 1572 |
Held that a claimant who successfully obtains PTA may be entitled to costs of the appeal irrespective of ultimate substantive success. |
Discussed but found distinguishable and not supportive of the Appellant’s case here. |
| Ahsan and Others v SSHD [2017] EWCA Civ 2009 |
Considered costs in the context of appeals involving allegations of fraud and remitted costs pending resolution of substantive issues. |
Referenced in relation to Rahman and the timing of costs awards. |
| ZN v Secretary of State for the Home Department [2018] EWCA Civ 1059 |
Confirmed that legally aided litigants should not be treated differently from others in costs awards. |
Supported the principle that public funding does not alter costs entitlement. |
| R (RL) v Croydon London Borough Council [2019] 1 WLR 224 |
Reinforced the need for principled basis in costs orders. |
Supported the Appellant’s submissions on costs principles. |
| R (Gudanaviciene) v First Tier Tribunal (Immigration and Asylum Chamber) [2017] 1 WLR 4095 |
Held that an interested party not taking steps in litigation is not liable for costs. |
Initially relied upon to deny costs against SSHD but distinguished post-Faqiri. |
| R (Faqiri) v Upper Tribunal [2019] 1 WLR 4497 |
Explained the rationale for contingent costs orders in CPR 54.7A proceedings linked to UT appeals. |
Key authority underpinning the costs order challenged in this appeal. |
Court's Reasoning and Analysis
The court examined the jurisdictional basis for making costs orders in CPR 54.7A judicial review proceedings against the SSHD, who is an interested party rather than a defendant. It acknowledged the binding authority of Faqiri, which allowed contingent costs orders linking costs in CPR 54.7A proceedings to costs in the UT appeal. However, the court identified a jurisdictional barrier grounded in the Senior Courts Act 1981 and the distinct statutory and procedural regimes governing costs in the Administrative Court and the Upper Tribunal.
The court accepted that CPR 54.7A proceedings and UT appeals are separate proceedings with different costs regimes: CPR 44 applies to the Administrative Court, while TP(UT)R governs costs in the UT. The court agreed with the Appellant that absent express statutory provision, costs orders cannot cross these jurisdictional boundaries. It also considered the risk that the UT would effectively be a judge in its own cause if required to award costs incurred in CPR 54.7A proceedings, given the SSHD’s role in upholding UT decisions.
The court noted that while contingent costs orders may be principled and fair in theory, the restrictive costs regime in the UT means that successful claimants might not recover costs of the judicial review if transferred to the UT. The court thus endorsed the approach of transferring JR proceedings to the UT to allow costs to be determined under the appropriate regime, preserving judicial discretion and avoiding jurisdictional conflict.
In this case, however, because the proceedings had concluded more than one month prior, the UT was barred from making any costs order under its rules. The SSHD’s concession to dismiss the appeal and substitute an order treating JR costs as costs of the UT appeal was overtaken by events. The court therefore had to consider the costs issue afresh.
Considering the procedural history and the compromise reached by the parties, the court found the Appellant to be the successful party and held that the SSHD could have avoided the CPR 54.7A proceedings by accepting the FTT decision earlier. The court was not persuaded by the SSHD’s arguments regarding the Appellant’s procedural conduct or omissions. Weighing the principles, the court concluded that the SSHD should pay the Appellant’s costs of the CPR 54.7A proceedings, substituting the earlier order of no costs save detailed assessment.
Holding and Implications
The appeal is allowed and the cross appeal is dismissed.
The court substituted the previous order with one requiring the Secretary of State for the Home Department to pay the Appellant’s costs of the CPR 54.7A proceedings. The court recognized the Appellant as the successful party and found it just for the SSHD to bear these costs, given the procedural history and underlying principles of access to justice and public interest in fundamental rights cases.
The court emphasized the jurisdictional limitations on costs orders crossing between the Administrative Court and the Upper Tribunal and endorsed the transfer of judicial review proceedings to the UT for costs determination when appropriate. However, due to the delay in this case, the UT was precluded from making such an order. No new precedent was established beyond clarifying the jurisdictional constraints and reaffirming established principles on costs in these procedural contexts.