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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Fayad, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWCA Civ 54 (31 January 2018)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/54.html
Cite as: [2018] EWCA Civ 54

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Neutral Citation Number: [2018] EWCA Civ 54
Case No: C4/2014/2729

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT))
HIS HONOUR JUDGE McKENNA SITTING AS A DEPUTY HIGH COURT JUDGE

[2014] EWHC 2556 (Admin)

Royal Courts of Justice
Strand, London, WC2A 2LL
31/01/2018

B e f o r e :

LORD JUSTICE HICKINBOTTOM
and
LORD JUSTICE SINGH

____________________

Between:
THE QUEEN ON THE APPLICATION OF
NAZEM FAYAD


Appellant
- and -


THE SECRETARY OF STATE FOR
THE HOME DEPARTMENT



Respondent

____________________

Gary Dolan (instructed by AMZ Law) for the Appellant
Susan Chan (instructed by Government Legal Department) for the Respondent

Hearing date: 24 January 2018
Further written submissions: 24 January 2018

____________________

HTML VERSION OF APPROVED JUDGMENT THE COURT CERTIFIES THAT THIS JUDGMENT MAY BE CITED IN OTHER CASES
____________________

Crown Copyright ©

    Lord Justice Hickinbottom :

  1. This is an application by the Appellant Nazem Fayad under CPR rule 52.24(5) for review of the decision of Master Bancroft-Rimmer of 16 August 2017 in which she ordered that, in respect of the costs below, there should be no order; and that the Appellant should pay the Secretary of State's costs of making costs submissions.
  2. The background to the application is as follows. The Appellant was born in Sierra Leone on 5 February 1961. In 1994, when he was living in Lebanon, he applied for and obtained a British Overseas passport through the British Embassy in Beirut. In 2003, the Secretary of State placed the Appellant on the Stop File List, because that first passport had been issued by an official against whom allegations of corruption had been made. Unfortunately, the fact that the Appellant was on that list was not noticed when the Appellant was issued with a Certificate of Registration as a British Citizen on 19 April 2005, or when he was issued with successive British passports on 25 March 2005, 25 April 2005, 28 March 2007 and 13 December 2009.
  3. However, when he applied for a new passport in 2012 – the first application he made from within the United Kingdom – the Identity and Passport Service ("the IPS"), acting on behalf of the Secretary of State noticed that he was on the list, and his application was referred to a fraud investigation officer. In the course of that investigation, the Appellant attended several interviews, and provided various information and documents including several copies of his birth certificate which were purportedly certified.
  4. Pausing there in the chronology, it would be helpful to identify the basis upon which the Appellant claimed that he was entitled to a British passport. As I have indicated, he was born on 5 February 1961, in that part of Sierra Leone which was then a British Colony. Sierra Leone declared independence on 27 April 1961. The way in which citizenship of those who had been born in Sierra Leone was affected by independence was effectively determined by the citizenship laws enacted by the newly independent Sierra Leone government. Those were to the effect that an individual born in Sierra Leone prior to independence became a citizen of Sierra Leone if his or her parents and grandparents were also born in Sierra Leone. Otherwise, a person born in the British Colony of Sierra Leone before independence retained the status of a British Subject Citizen of the United Kingdom and Colonies. Under the British Nationality Act 1981, that status was later converted to British citizenship.
  5. The Appellant's claim to British citizenship such as to entitle him to a British passport was therefore dependent upon the place of birth of his parents and grandparents; and, in his interviews with the IPS to which I have referred, he was pressed for documentation showing that one or more of his parents and grandparents were born outside Sierra Leone. He said that both his parents were born in Lebanon, and relied on the certified copies of his birth certificate as evidencing that fact. The IPS, however, did not accept the genuineness of the copy birth certificates which had a number of discrepancies, e.g. they bore different volume and page numbers from the purported source document. Furthermore, it appeared that, when the Appellant submitted his original application for a British passport in 1994, he had not submitted the required documentary evidence; and, as I have indicated, that application had been considered and issued by an official against whom allegations of corruption had been made. Indeed, it seemed that the Appellant could not remember anything of the circumstances in which his first British passport was issued in 1994.
  6. The IPS was consequently not satisfied that any one of the Appellant's parents and grandparents was born outside Sierra Leone. Therefore, it did not grant the application; but neither did it refuse it. On 14 December 2012, in response to an enquiry from the Appellant's Member of Parliament, the IPS wrote confirming that, at his interview of 3 October 2012, the Appellant had failed to provide documentation required to prove his British nationality. After pre-action protocol correspondence, on 4 March 2013 the Appellant issued judicial review proceedings. These focused on the letter of 14 December 2012. The grounds were simple: the Appellant contended that the 19 April 2005 Certificate of Registration was conclusive of his British nationality; and there was thus no justification for the IPS re-examining his nationality, or the delay that had caused, or for not now issuing him with a new British passport forthwith. So far as relief was concerned, the Appellant sought a mandatory order requiring the IPS to issue him with two British passports, and he claimed compensation for the earnings he had lost as a result of the IPS delay.
  7. At an oral hearing on 14 November 2013, Collins J granted permission to proceed (reported as [2014] EWHC 4772 (Admin)). He ordered the Secretary of State to issue the Appellant with a temporary passport; and he asked Counsel for the Secretary of State (then, as before us, Susan Chan) to convey to the Secretary of State that she should not be proud of the way in which the Appellant's passport application had been dealt with; and, the judge said, it looked to him as though she ought to concede (see [47]).
  8. The substantive hearing came before Judge McKenna on 16 July 2014. Shortly before, on 17 June 2014, the Appellant applied to amend his grounds, to include (amongst other things) a claim that, by withholding his passport the Secretary of State had violated his rights under article 8 of the European Convention on Human Rights. The relief sought was clarified and expanded to include a declaration that the IPS had acted unlawfully by questioning his entitlement to British citizenship, and "damages for loss of earnings due to [his] inability to travel prior to the grant of interim relief and continued restrictions to his ability to engage in business activity". Judge McKenna appears to have granted that application on 8 July 2014.
  9. However, in a reserved judgment dated 24 July 2014 ([2014] EWHC 2556 (Admin)), he dismissed the claim. In doing so, he refused to consider documents from 1994 which the Appellant contended assisted him, because they had been disclosed late; and he accepted that the Secretary of State had legitimate grounds for concern in respect of the genuineness of birth certificates upon which the Appellant relied (see [30]). He noted that the Secretary of State had not refused the request for a passport: she had simply asked for documentary evidence from the Appellant to establish his identity and thus his entitlement to a British passport, doubt having been cast on that by virtue of the allegations of corruption against the official through whom he obtained his first British passport and the fact that, in applying for his first British passport, he appeared not to have submitted the required documentary evidence in support of his identity (see [26]-[27]). Those concerns had been compounded by the fact that the Appellant appeared not to recall when his first passport was issued or the documents he used to support his request for that passport (see [28]), and the documents he had produced contained various unexplained discrepancies (see [29]). The Appellant's main proposition, that he was entitled to a new British passport now simply because he had been granted a Certificate of Registration of British Citizenship and had had a British passport for 20 years, was therefore not sound (see [30]). The Certificate was granted only on the basis of his first British passport. The Secretary of State had legitimate, evidence-based concerns, and it was not irrational for her to decline to issue a British passport to the Appellant before those concerns had been alleviated (see [32]-[33]). Nor did the Secretary of State act in any way that was procedurally unfair (see [34]-[35]).
  10. Having refused the application, he directed that costs be dealt with on the basis of written submissions. The Secretary of State contended that there should be no order as to costs. The Appellant submitted that he should be entitled to his costs; but, alternatively, there should be no order. Judge McKenna ordered that there should be no order as to costs.
  11. The Appellant issued an Appellant's Notice in this court on 15 August 2014, challenging Judge McKenna's refusal of his judicial review, and again seeking an order compelling the Secretary of State to issue him with a passport. On 19 December 2014, on the papers, Davis LJ refused permission to appeal. The Appellant renewed his application for consideration at an oral hearing.
  12. However by this stage, but unknown to Davis LJ, matters had moved on. On 13 August 2014, in response to queries raised by the IPS, the British High Commission in Sierra Leone confirmed that the certified birth certificates provided by the Appellant were genuine, confirmed to the Appellant by letter dated 1 December 2014. In the light of that, on 22 June 2015, Hallett LJ adjourned the renewed application for permission to appeal, to enable the Secretary of State to reconsider the matter.
  13. The oral hearing was eventually set down for hearing before Jackson LJ on 15 January 2016. He granted permission to appeal, but set the matter down for a directions hearing, at which the Secretary of State would be represented, with a view to speeding the ultimate resolution of this by then long-running case. At the directions hearing on 11 February 2016, Jackson LJ refused the Secretary of State's application to set aside permission to appeal. He admitted into the appeal the letter of 1 December 2014 and the Appellant's 1994 documents. Given that that evidence had not been before Judge McKenna, he suggested that a sensible way forward might be for the parties to consent to the appeal being allowed, and that the matter be remitted to the Administrative Court so that a judge of that court could consider the judicial review claim on the basis of all the relevant evidence now available (see [9]).
  14. The parties took that hint. They agreed that the appeal should be withdrawn, on the basis that the Appellant would submit a further application for two passports, which the Passport Office would consider without further fee and would issue the passports absent "special circumstances". The Secretary of State also agreed to remove the Appellant from the Stop File List. That was incorporated into a consent order approved by Master Meacher on 22 July 2016. As part of that consent order, the Secretary of State agreed to pay the Appellant's costs of the appeal; and, in respect of the costs below, it provided:
  15. "The issue of costs of the Appellant's Judicial Review proceeding… to be determined by a Master of Civil Appeals on the papers after filing of costs submissions by both parties…".
  16. The parties duly made written submissions, and, on 16 August 2017, Master Bancroft-Rimmer made an order that Judge McKenna's order for no order for costs should stand, and the Appellant pay the Secretary of State's costs of making the costs submissions. She gave the following reasons for her order, which adequately set out the submissions of the parties before her.
  17. "The Appellant submits that the entire prosecution of the [Secretary of State's] case has been unfair and for that reason the court should exercise exceptional discretion to order the [Secretary of State] to pay the entire costs of the judicial review proceedings from the time that the pre-action protocol [letter] was made.
    The [Secretary of State] submits that this is a case where significant developments have taken place since the date of the decision of [Judge] McKenna which made it right to pragmatically settle the Court of Appeal proceedings but which should not upset the costs order make by [Judge] McKenna.
    The grounds of claim were unsuccessful on the basis which existed at the time. [Judge] McKenna attached considerable weight to the fact that the authenticity of the birth certificates was not shown. That authenticity was only confirmed after the Appellant's notice in this appeal had been filed. This is a key issue. I do not find the Appellant's assertions of unfairness justified to the extent that the lower court order as to costs should be substituted with a fresh order from this court. It is notable that when the Court of Appeal granted permission for fresh evidence to be adduced on the appeal Jackson LJ stated that 'the hearing [of the appeal] will be more akin to an original hearing than a rehearing on appeal ([see [8]]).
    I do not accept the Appellant's submission that the discretion of the court should be exercised to order the [Secretary of State] to pay the costs of the judicial review proceedings. At the time the decision of [Judge] McKenna was made there were doubts as to the authenticity of the Appellant's birth certificates and verification of documentation was awaited from Sierra Leone. The Appellant had been told the nature of the concerns about his application. In those circumstances the costs order made by [Judge] McKenna remains the appropriate costs order in respect of the judicial review proceedings."
  18. There is no right of appeal against a decision made by a Master under CPR rule 52.24(1); but, by rule 52.24(5), a party may request that such a decision be reviewed by a single judge of the Court of Appeal. The rule prescribes that any review shall be on the papers, unless the single judge considers that the matter cannot be fairly determined without an oral hearing. I pause to emphasise that this right is entirely distinct from the right under CPR rule 52.24(6) to have a decision by a single judge on the papers reconsidered by the same, or another, judge; although, since rule changes made in October 2016, a reconsideration under this provision is also to be done on the papers unless the judge considers that the matter cannot be fairly determined without an oral hearing. Prior to October 2016, a party had the right to a reconsideration at an oral hearing.
  19. Returning to rule 52.24(5), any request for review must be filed within seven days after the party is served with notice of the Master's decision (rule 52.24(7)). Such a review will be determined on paper without an oral hearing, except that the single judge may direct that the review be determined at an oral hearing and must do so if of the opinion that the review cannot be fairly determined on paper without an oral hearing (rule 52.24(5)). Where a single judge does determine the review on the papers, there is an express exclusion of the right to a reconsideration of that decision under rule 52.24(6). A single judge may refer the review to a court of two or more judges (rule 52.24(8)). Section 58(2) of the Senior Courts Act 1981 provides that no appeal to the Supreme Court lies from decisions of the Court of Appeal taken by a court officer, or indeed by a single judge.
  20. On 18 October 2017, the Appellant purported to apply for permission to appeal the order of Master Bancroft-Rimmer's decision of 16 August 2017. Given that there is no right of appeal, that was treated as an out-of-time application for a rule 52.24(5) review; and, indeed, the "application for permission to appeal" was accompanied by an application for an extension of time for review under rule 52.24(6). That application was made on the basis that, taking into account the criteria for granting relief from sanctions set out by this court in Sayers v Clarke Walker [2002] EWCA Civ 645; [2002] 1 WLR 3095, it would be in the interests of justice and would further the overriding objective retrospectively to extend time. The only substantive ground of challenge to the Master's decision is that it is legally irrational.
  21. The Secretary of State submits in response that:
  22. i) On the basis of the current approach to such matters as set out in Denton v T H White Limited [2014] EWCA Civ 906; [2014] 1 WLR 3926, the court should not extend time to allow the application to proceed.

    ii) The parties having agreed that the Master should determine the issue of costs below on the papers, applying RS (Sri Lanka) v Secretary of State for the Home Department [2011] EWCA Civ 114, the court now lacks jurisdiction to re-open matters.

    iii) In any event, the Master's decision is not irrational. On the contrary, it is well within the range of decisions open to her to make.

    Given the jurisdictional issue raised, I directed the matter be adjourned into open court, and referred the matter to a constitution of two judges.

  23. The Secretary of State's submissions helpfully identify the three issues before the court. I will deal with them in turn; but, before I do, I should briefly refer to RS (Sri Lanka). As I have indicated, at the relevant time, CPR rule 52.24(6) was differently worded: it gave a party dissatisfied with a decision made by a judge on the papers a right to have the matter reconsidered at an oral hearing (cf the wording since October 2016, which still gives a right to reconsideration, but that is to be done on the papers unless the single judge considers that the matter cannot be fairly determined without an oral hearing: see paragraph 16 above). RS (Sri Lanka) concerned an appeal to this court, which was compromised on the basis of an agreement between the parties, encapsulated in a consent order, that "the matter of costs to be determined by a judge on the papers…". Following written submissions, Sullivan LJ made an order that there be no order for costs as between the parties. One party applied for a reconsideration under CPR rule 52.24(6), Sullivan LJ's decision having been made without a hearing. This court (Maurice Kay and Thomas LJJ) held that the agreement of the parties that costs would be determined on the papers, objectively construed, meant that they were content for a judge to determine the issue of costs "without the possibility of further recourse to the court…. By an agreement in those terms the parties are putting their trust in the judge to produce a binding decision as to where the costs should fall" (at [8] per Maurice Kay LJ). Therefore, the court had no jurisdiction to reconsider the decision of Sullivan LJ at an oral hearing.
  24. Turning to the three issues before the court now, first, there is the question of delay. In Denton, this court identified three stages in the consideration of an application for relief from sanctions, namely:
  25. i) The court must identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order engaging CPR rule 3.9(1). If the breach was not serious or significant, it is likely that relief will be granted by the court, and it is unlikely that it will be necessary to investigate stages (ii) and (iii) in any depth.

    ii) The court must identify and consider the reasons why the default occurred.

    iii) To enable the application to be dealt with justly, the court must evaluate all the circumstances of the case, including the need to enforce compliance with rules etc and the need for litigation to be conducted efficiently and at proportionate costs.

  26. In Hysaj v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 WLR 2472, this court applied the same approach to applications for extensions of time for permission to appeal. By analogy, the same principles are applicable to an application for an extension of time for review of a decision under CPR rule 52.24(7). With respect to Mr Dolan's reference to Sayers v Clarke Walker, pre-Denton authorities on the proper approach to applications for relief from sanctions and extensions of time have been overtaken by the recent authorities and are unhelpful; and reliance should not now be placed upon them. The approach to be adopted is that set out in Denton.
  27. CPR rule 52.24(7) requires an application to review a Master's decision to be made within seven days of service of the decision of which compliant is made. Master Bancroft-Rimmer's decision is dated 16 August 2017 and so, if posted that day, would have been served on 18 August 2017. The application ought to have been filed on or before 25 August 2017. It was in fact filed on 10 October 2017, 53 days after service of the order and 46 days late.
  28. The application for an extension unfortunately does not focus on the approach in Denton, and therefore does not address the specific issue of whether the delay in this case was "serious" and/or "significant". In my view, it is clearly "serious", and probably also "significant". A delay of 46 days on a time limit of seven days requires some explanation.
  29. Two explanations are offered in the application. First, it is said that the Appellant was substantially prejudiced "by the non-disclosure and non-compliance on the part of the [Secretary of State]". However, if and insofar as that is true, that does nothing to explain why the application for review was late.
  30. Second, it is said the Applicant sought to request reconsideration earlier, but was informed that RS (Sri Lanka) meant the court had no jurisdiction to reconsider the Master's decision. No evidence is submitted in support of that assertion; but in any event, taking it at face value, it does not assist the Appellant. If he had applied to the court for the Master's decision made on the papers to be reconsidered at an oral hearing under CPR rule 52.24(6), then, leaving aside RS (Sri Lanka), that provision does not apply to the decisions of Masters. But the Appellant did not in the event apply for reconsideration, but review by a judge under CPR rule 52.24(5). No explanation is suggested in the documents as to why that application was not made on time, or earlier than it was. At the hearing before us, Mr Dolan accepted responsibility for the delay: he said it resulted from uncertainty about the appropriate course to challenge the Master's decision, which was compounded by the message from the Civil Appeals Office to the effect that the court had no jurisdiction to entertain a reconsideration. However, there is no evidence to that effect; and, if the decision to challenge the Master's order was taken within seven days, it is difficult to see why a further 46 days were required to work out that the appropriate route was CPR rule 52.24(5). The Appellant was throughout legally represented.
  31. Moving to the third stage of Denton, in considering where justice lies – and, for the moment, proceeding on the basis that this court does have jurisdiction to deal with the review application – the absence of any evidenced explanation for a serious and significant failure to comply with the time limit for making an application for review weighs heavily against granting an extension of time. Furthermore, the Secretary of State has been prejudiced by the delay: reasonably considering that the Master's costs order was final, she has proceeded to refer the matter to costs consultants so that the order for costs in her favour can be progressed. The Appellant complains about the previous delays of the Secretary of State in progressing the appeal; but these are not to the point, because the Secretary of State has agreed to pay the Appellant's costs of the appeal. We are concerned with the costs below. There is no issue of principle involved here: the Appellant simply considers that, on the basis of well-established costs jurisprudence, the Master's decision was wrong.
  32. Finality of judicial decisions is an important principle. In the absence of any good reason for the serious and significant delay in filing the application for reconsideration – and, in my view, the Appellant has advanced no good reason – I consider the appropriate and just course is not to exercise the court's discretion to extend time.
  33. That is sufficient to determine the application to reconsider, by refusing it; but, given that we have heard full argument on the other two issues raised, it is appropriate to make at least some reference to them.
  34. In respect of jurisdiction, Ms Chan submits that the agreement in this case – that costs be dealt with by the Master on the papers – excluded the jurisdiction of the court to review her decision just as much as the agreement in RS (Sri Lanka) ousted the jurisdiction of the court to reconsider the costs orders made by Sullivan LJ on the papers. She particularly refers to the passage from the judgment of Maurice Kay LJ at [8], partly quoted in [19] above, where he said this:
  35. "It seems to me that, where parties clearly settle a case on terms that costs are to be determined by a judge on the papers, it objectively means that the parties are content to leave the matter to be so determined without the possibility of further recourse to the court. It would be extremely odd if the parties were agreeing on that course, which itself incurs significant costs, whilst maintaining the risk that there might be a further stage in the proceedings which would incur even more costs. By an agreement in those terms the parties are putting their trust in the judge to produce a binding decision as to where the costs should fall."

    Ms Chan submits that the agreement in that case was in similar terms to the agreement in the case before us; and Maurice Kay LJ clearly indicated that the agreement excluded any further procedural steps once the judge identified as dealing with costs on the papers had done so.

  36. However, I am unpersuaded. As was made clear in RS (Sri Lanka), any agreement as captured in a consent order has to be objectively construed from the words used. In that case, it was held that, where there is a consent order that costs are to be determined on the papers, then, on the true construction of the agreement, the parties themselves have excluded an application that costs be determined at an oral hearing. That the court was focused exclusively on that point is made clear by Maurice Kay LJ in [9]. Having agreed to exclude reconsideration at an oral hearing does not mean that they have agreed to exclude the right to have any decision of a court officer reviewed by a judge, any more than it would exclude a right of appeal if there were any such right. Indeed, I see no reason to construe their agreement in such a strained way. By their agreement, in relation to costs as between the parties, the parties (no doubt in the cause of proportionality, and with a view to saving costs) purported to exclude the possibility of an oral hearing before the Master, not of a review by a single judge which is highly likely to be on the papers only. Of course, no appeal lies from either a decision by a court officer or from a single judge, because of the effect of section 58(2) of the 1981 Act.
  37. Therefore, in summary, in my view, by the consent order to which they each agreed, the parties in this case agreed that costs should be dealt with as a paper application by a Master, but they did not purport to (and, on the true construction of the agreement between them, they did not) exclude their mutual right under rule 52.24(5) to request a review by a judge.
  38. I should perhaps add that, since any reconsideration by a Master of her own decision must be on the papers unless she considers that the matter cannot be fairly determined without an oral hearing, I am unconvinced that a simple agreement between the parties to the effect that a costs issue is to be determined "on the papers" would now necessarily be construed as excluding a reconsideration, as it was in RS (Sri Lanka). But that issue does not arise in this case, and I would decline to determine it here. I am firmly of the view that the agreement reached in this case does not exclude a review of a Master's decision by a single judge.
  39. Finally, I turn to the merits of the application. It was common ground before us that, in order to succeed, Mr Dolan must show that the Master's decision fell outside the wide ambit of her discretion in respect of costs. In my view, despite his efforts, Mr Dolan fell far short of overcoming that hurdle.
  40. The Appellant failed before Judge McKenna on all grounds. On the material before him, in my view, Judge McKenna was right (and, certainly, entitled) to refuse the claim for judicial review. The key was that the Secretary of State did not refuse the Appellant's application, but was simply not satisfied that the application should be granted on the basis of the information before her. There was clearly a proper basis for her to come to that conclusion, notably the Appellant's copy birth certificates had substantial inconsistencies, and the Appellant was unable to remember the first application for a British passport that he made which was at the root of the concern, the successful result of which was the basis of his Certificate of registration of British Citizenship, the later British passports with which he had been issued, and his most recent application for such a passport. The confirmation from Sierra Leone that the birth certificates were genuine only came after Judge McKenna's decision. Whilst, at first blush, no order for costs may appear somewhat generous to the Appellant, as I have indicated, the Secretary of State submitted that, in all the circumstances (including, no doubt, the delays in the matter which lay at the door of the Secretary of State, and the eventual outcome), there should be no order as to costs. The Appellant, despite having lost the judicial review on all grounds, boldly and optimistically pressed for a costs order in his favour. However, in my view, in respect of costs, Judge McKenna was clearly entitled to make no order.
  41. After the appeal had been compromised, in considering the costs below, the task of the Master was to do justice between the parties without incurring disproportionate costs for the parties or time for the court. As this was a public law claim, the approach was informed by the principles set out by this court in M v Croydon London Borough Council [2012] EWCA Civ 595; [2012] 1 WLR 2607. Giving the substantive judgment of the court, at [60], Lord Neuberger of Abbotsbury MR drew a distinction between three types of case, namely (i) a case where the claimant has been wholly successful, whether at a contested hearing or pursuant to a settlement; (ii) a case where he has succeeded in part, following a contested hearing or settlement; and (iii) a case in which a settlement does not reflect the claimant's claims. Whilst he stressed that every case would depend on its facts, he said that, in cases falling within (i), the claimant should recover his costs unless there was some good reason to the contrary; and, in cases falling within (iii), the default position should be no order for costs, although if it is "tolerably clear" that the claimant would have won if the matter had been contested, then a costs order in his favour might be appropriate.
  42. Following the compromise of the appeal, this case clearly fell within (ii). The Appellant obtained some of that which he claimed – notably a decision to grant him a new British passport – but he did not obtain everything he sought. Notably, as my Lord Singh LJ pointed out during the course of the hearing, he failed to obtain damages. It is noteworthy that the damages claimed were not restricted to a non-pecuniary award for breach of article 8, but included a claim for loss of earnings of an unspecified (but potentially large) amount. That was not a nominal claim.
  43. In any event, the settlement of the appeal on the basis that the Appellant obtained a new British passport clearly did not mean that the Secretary of State accepted the merits of the claim for judicial review or that Judge McKenna's dismissal of the claim was wrong; because, as Jackson LJ indicated in giving directions in the appeal, the fresh evidence (notably the confirmation from Sierra Leone that the copy birth certificates, although having attributes that were the source of proper concern, were genuine) meant that the challenged decision taken by the Secretary of State in December 2012 had been overtaken by events. There is nothing in the compromise of the appeal that suggests that the Secretary of State conceded that the decision of Judge McKenna was wrong in law.
  44. Consequently, I do not consider that it is sensibly arguable that the decision of the Master – that, in respect of the costs below, it was appropriate and just as between the parties to make no order – was perverse. Indeed, in my respectful view, it was an eminently sensible and correct order.
  45. For those reasons, I would refuse all of the Appellant's applications now before this court.
  46. There are two final points. First, after the hearing, the Appellant's solicitors lodged several pages of further written submissions with extensive "exhibits". The Appellant was represented by Counsel at the hearing. All the post-hearing written submissions could have been made at the hearing, which was the proper opportunity to make them. Leaving aside the fact that, in my view, these submissions do not materially add to those made before us, it is entirely inappropriate for a party to make further unsolicited written submissions after a hearing, absent very good reason. There was no good reason here for seeking to reopen the debate on the issue before us, in the manner the Appellant's solicitors sought to do.
  47. Second, and importantly, I have had the opportunity of considering the judgment of Singh LJ, and respectfully agree with his further observations.
  48. Lord Justice Singh :

  49. I agree that these applications should be refused for the reasons given by Hickinbottom LJ. I also agree with what he says at [41] about the inappropriateness of the attempt to make further unsolicited written submissions after the hearing.
  50. I would like to add a few observations on one point in the hope that this may be of assistance in other cases. This relates to the inclusion at some point in this claim for judicial review of a claim for damages, in particular a claim for damages under the Human Rights Act 1998 ("HRA").
  51. The ability of the court to award damages in claims for judicial review is an important part of its remedial powers in order to do full justice in cases in which a public authority has acted unlawfully. The old "forms of action" have long disappeared. It was in order to give the court sufficient flexibility that, when RSC Order 53 was amended in the late 1970s and primary legislation was introduced in 1981 to govern what became "an application for judicial review", it was made clear that a claim for damages could be included in judicial review proceedings.
  52. The present position is governed by section 31(4) of the Senior Courts Act 1981 and by CPR Rule 54.3(2), which provides that:
  53. "A claim for judicial review may include a claim for damages, restitution or the recovery of a sum due but may not seek such a remedy alone."
  54. What these provisions govern is the procedure for making a claim for damages, not substantive law. They ensure that the Court has sufficient flexibility to consider a claim for damages in the same proceedings in which it is considering public law remedies such as a quashing order. However, what these procedural provisions do not do is say anything about substantive law. In particular they do not create a cause of action for damages where none would otherwise exist.
  55. In order to know whether there is a proper cause of action for damages in a claim for judicial review one still has to go to some other source of substantive law. It may be, for example, that there is a cause of action in negligence; trespass to goods or the person; or for breach of statutory duty. However, the fact that such a cause of action can in principle arise (as a matter of procedure) in a claim for judicial review should not mean that the usual principles for making such a claim do not apply. The claim should be properly pleaded and particularised.
  56. One of the sources of substantive law which may, in an appropriate case, create a cause of action for which damages may be available is the HRA. In a case in which a public authority acts unlawfully under section 6(1) of the HRA, Parliament has made it clear that the court "may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate": see section 8(1). However, subsection (2) expressly provides that:
  57. "damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings".
  58. Further, subsection (3) provides that:
  59. "No award of damages is to be made unless, taking account of all the circumstances of the case, including –
    (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
    (b) the consequences of any decision (of that or any other court) in respect of that act,
    the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made."
  60. Subsection (4) provides that:
  61. "In determining –
    (a) whether to award damages, or
    (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention."
  62. It should be noted that, in section 8, "court" includes a tribunal: see subsection (6).
  63. In appropriate cases this power to award damages for breach of the HRA is important in order for the court to ensure that "just satisfaction" (to use the terminology of the Convention itself, which is reflected in section 8(3)) is afforded to a person whose fundamental human rights are breached by a public authority. However, this important provision must not be abused.
  64. In particular claims for judicial review which include a claim for damages for breach of the HRA should be properly pleaded and particularised. They should set out, at least in brief, "the principles applied by the European Court of Human Rights" under Article 41 of the Convention which are said to be relevant. I note that, in the present case, the Claimant at one time claimed damages for loss of earnings and for "humiliation and distress". No explanation was given as to the principles applicable under Article 41 would govern such heads of loss: cf., for example, Scorey and Eicke, Human Rights Damages: Principles and Practice, ch. 2.
  65. During the course of the hearing before us Mr Dolan appeared to suggest that it was immaterial that the claim for judicial review had, at least at some stage, included a claim for damages under the HRA. He submitted that the Appellant had nonetheless obtained in substance what his claim for judicial review had sought.
  66. In my view, this reflects an unfortunate culture which has developed in this area of legal practice. Too often claims for damages, in particular claims under the HRA, are thrown in at the end of a claim form, apparently as an afterthought and frequently as a makeweight. If I am right to detect that such a culture has developed, it is firmly to be discouraged. Courts and tribunals should be astute to require that claims for damages in judicial review proceedings are properly raised and pleaded. If they are not, they should be prepared to use the full range of their powers to ensure that they are. In appropriate cases this may have consequences in costs.


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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2018/54.html