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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bahta & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 (26 July 2011) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2011/895.html Cite as: [2011] ACD 116, [2011] CP Rep 43, [2011] 5 Costs LR 857, [2011] EWCA Civ 895 |
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C4/2010/2403, C4/2010/3033, C4/2011/0609 |
ON APPEAL FROM HIGH COURT
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SULLIVAN
and
MR JUSTICE HEDLEY
____________________
The Queen on the Application of Bahta |
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The Queen on the Application of AK (Eritrea) |
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The Queen on the Application of TZ (Eritrea) |
Appellants |
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The Queen on the Application of RO (Iran) |
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The Queen on the Application of KD (Kosova) |
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- and - |
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Secretary of State for the Home Department |
Respondent |
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Public Law Project |
1st Intervener |
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The General Council of the Bar of England & Wales |
2nd Intervener |
____________________
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Appellants Bahta and AK
Mr Richard Wilson QC and Mr Adam Tear (instructed by Duncan Lewis) for the Appellants TZ, RO and KD
Mr Jonathan Swift QC and Amy Rogers (instructed by Treasury Solicitor ) for the Respondent in all cases
Ms Nathalie Lieven QC and Tim Buley (instructed by Leigh Day) for the 1st Intervener
Mr Richard Clayton QC and Ms Philippa Jackson (instructed by the General Council of the Bar of England and Wales) for the 2nd Intervener
(written submissions only)
Hearing dates : 17 June 2011
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Crown Copyright ©
LORD JUSTICE PILL :
"Having considered the authorities, the principles I deduced to be applicable are as follows:
(i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.
(ii) it will ordinarily be irrelevant that the Claimant is legally aided;
(iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;
(iv) at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.
(v) in the absence of a good reason to make any other order the fall back is to make no order as to costs.
(vi) the court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage."
Those principles have been approved in subsequent cases, including in this court. The expression "plain and obvious" does not appear in the Boxall guidelines but has since been used when applying principles (iv) and (v).
"Until the Supreme Court handed down its judgment in ZO on 28 July 2010, this was not a 'plain and obvious case'. The grant of indefinite leave to remain on 15/03/10 made it academic."
"I do not consider that the outcome of the proceedings when commenced was plain and obvious. The proceedings became academic because of the grant of ILR. That decision was taken independently of the grounds of challenge."
"The Claimant's grounds of claim were vindicated by the unanimous judgment of the Supreme Court in ZO Somalia v SSHD (2010) UKSC 36; but at the stage at which the claim was brought, it was not 'plain and obvious' that it would succeed. It was issued at a time when the Defendant's appeal to the Supreme Court was pending. Different Judges sitting in the Administrative Court made different decisions upon applications for permission and interim relief in similar cases. My own practice was to stay permission applications and refuse interim relief, pending the decision of the Supreme Court. The Defendant did not defy the order of Ian Dove QC, on the papers, to grant the Claimant permission to work. She applied, in accordance with paragraph 2 of the order, to discharge it on 48 hours written notice. Her application was not determined before judgment was given by the Supreme Court in ZO. The reality is that the Claimant gained nothing by these proceedings which he would not have gained by awaiting upon that decision."
"I start from the premise that where as here, the substantive proceedings have been resolved without a trial, the overriding objective in any order as to costs is to do justice between the parties, with the court always remembering to take care to ensure that it does not discourage parties from settling judicial review proceedings.
Notwithstanding the authority of the existing Court of Appeal decision in ZO at the material time, I am not persuaded that this is a plain and obvious case in which the claim to Judicial Review would have bound to have succeeded at the time the claim was withdrawn by consent on the 14th of July 2010 or at the earlier time when the principal claim for relief became academic by virtue of the grant of ILR on the 17th and 23rd of December 2009.
There is nothing to suggest that the decision to grant ILR was influenced by the judicial review claim or the grant of interim relief by Ouseley J on the 9th of December 2009. I accept that that was a decision taken outside the grounds of challenge on the application for Judicial Review and was one which was an awaited one to settle the claimant's immigration status and which in the event was determined exceptionally outside the Immigration Rules.
This was a case in which at the time of settlement, the decision of the Supreme Court in ZO had not yet been delivered. Had it not become academic, its outcome would have been determined by that decision. The defendant should not be penalised for making a sensible decision on settlement, by virtue of the fact that in the event the Supreme Court upheld the Court of Appeal, any more than the claimant should have been penalised in costs, in the event the Supreme Court had ruled to the contrary. I also accept that in any event the claimant would not necessarily have been entitled to an automatic grant of PTW.
The fall back position on costs is the appropriate one here."
"1. In the light of the guidance in Boxall and subsequent cases, I have to consider whether this is a case in which it is obvious which side would have won had the substantive issues being fought to conclusion.
2. Whilst I have considerable sympathy with the Claimant's position, given the position under the EC reception directive, I note that Mr Rabinder Singh QC was not prepared to give permission when the matter was before him on 12 August 2010. If he thought that this was a clear and obvious case, he would have given permission. Accordingly, I consider that it would not be appropriate to make any order in respect of the costs of this claim before that date.
3. Any costs incurred thereafter will have been very modest. Accordingly, I consider that the only course open is to make no order for costs."
"Once the CA had decided that the EU Reception Directive applied to second asylum claims, and there was no application to suspend the effect of that decision it was incumbent on the defendant to apply the law as it was declared to be even if only on a contingent basis pending any further appeal.
. . .
This was therefore a plain case when the law should have been applied and not deferred and the reasonable costs of challenging a plainly unlawful decision should be allowed.
The subsequent grant of ILR and the dismissal of the appeal to the Supreme Court are irrelevant, but costs are limited to 25 January in the light of the change of approach presaged on that date."
"The claimant properly advanced his claim before commencing proceedings. The defendant refused to grant him permission to work and so it was necessary to commence proceedings . . . It is plain and obvious that on the authority of the Court of Appeal the claimant would have won the judicial review. It is fair that the defendant should pay the claimant's reasonable costs."
"The claimant was justified in bringing judicial review proceedings since he has a long outstanding claim which had not been determined and in consequence he wanted to work, he needed permission to work, the decision of the Court of Appeal had held that someone in his position was entitled to receive permission to work pending the determination of his substantive asylum claim but the defendant had not granted him permission despite it being requested and had not provided a decision but only a statement that the decision would not be considered at the present time."
Jurisdiction
"Liability as to costs shall be determined by a judge on the basis of the filed written submissions only."
"the parties are putting their trust in the judge [in that case a single Lord Justice] to produce a binding decision as to where the costs should fall."
What was sought in that case (paragraph 9) was an oral hearing, with more than one judge, under CPR r.52.16(6). Mr Swift submitted that the present situation is indistinguishable.
"There is of course no judgment of the High Court on the merits but there is a valid order for costs. . . . In that situation section 16 of the 1981 Act appears to me to give the clearest possible jurisdiction for this court to entertain an appeal against the order if such an appeal is arguable . . ."
"The appropriate route if there is dissatisfaction with such an order is an appeal to the Court of Appeal. It is 'a final order' and any appeal lies to the Court of Appeal."
The present point was not argued in that case.
The law
"The unsuccessful party will be ordered to pay the costs of the successful party."
The court may make a different order (CPR r.43.3(2)(b)) and must "have regard to all the circumstances" (CPR r.44.3(4)). By virtue of CPR r.44.3(5) the conduct of the parties includes:
"(a) Conduct before, as well as during, the proceedings, and in particular the extent to which the parties followed the Practice Direction (Pre-Action Conduct) or any relevant Pre-Action Protocol." ["PAP"]
In the reasons given for the decisions appealed, no reference is made to compliance with the Protocol by the appellants and non-compliance by the respondent.
"It should not be forgotten that applications of this kind are usually dealt with on paper and in relatively short form. It will rarely be proportionate to enter into an overly detailed forensic analysis of the issues and the evidence and assessment of which party would have won or lost on which issue. The discretion is a broad one, and it is exercised in broad fashion."
"Plainly, the compliance with or breach of the pre-action protocol must be a relevant factor to be taken into account."
"For my part, the furthest I would be prepared to go along the path urged upon us . . . would be to urge all judges to bear in mind that, when an application for costs is made, a reasonable and proportionate attempt must be made to analyse the situation and determine whether an order for costs is appropriate. I emphasise a reasonable and proportionate attempt, bearing in mind the pressures on the Administrative Court, yet another hard pressed institution. A judge must not be tempted too readily to adopt the fall back position of no order for costs. Having said that, in my view there is no reason whatsoever to suppose that that is what is happening in the Administrative Court generally or that Mr Kenneth Parker fell into that temptation on this occasion. On the contrary, as I see it, he has considered the issues carefully and come to a reasoned decision. He exercised his discretion in proper fashion, acknowledging his task was to produce, if he could, a fair (or just) outcome. Thus, when he resorted to the fall back position, he only did so having conducted the appropriate exercise which was well within the permitted generous ambit of his discretion."
"It is not for this court to interfere and set aside a perfectly proper order because the rates of pay of publicly funded work are said to be too low. I understand the expressed concerns. It would be a sad day if society lost the services of lawyers prepared to act in publicly funded cases for the most vulnerable in society. It would also, I note, be a sad day if hard pressed local authorities found themselves unable to care for the vulnerable and needy in their areas, in the way they would wish, because they have wasted too many precious resources on unmeritorious claims."
"24. As has already been noted, Ms Rose declined to seek an order that each side should be liable for its own costs in any event on the ground that to do so would be wrong in principle. As Scott Baker J observed in [Boxall] para 12, the failure of a legally aided litigant to obtain a costs order against another party may have serious consequences. This is because, among other things, the level of remuneration for the lawyers is different between a legal aid and an inter partes determination of costs. This disadvantage is all the greater in a case such as this. It is a high costs case, for which lawyers representing publicly funded parties are required to enter a high costs case plan with the Legal Services Commission. It is a common feature of these plans that they limit the number of hours to an artificially low level and the rates at which solicitors and counsel are paid to rates that are markedly lower than those that are usual in the public sector. Mr Reddin has indicated that, as they are defending a win, E's solicitors would not be expected to be paid at risk rates. Nevertheless the rate of remuneration that is likely to be agreed for this appeal will be considerably lower than that which would be reasonable if costs were to be determined inter partes.
25. It is one thing for solicitors who do a substantial amount of publicly funded work, and who have to fund the substantial overheads that sustaining a legal practice involves, to take the risk of being paid at lower rates if a publicly funded case turns out to be unsuccessful. It is quite another for them to be unable to recover remuneration at inter partes rates in the event that their case is successful. If that were to become the practice, their businesses would very soon become financially unsustainable. The system of public funding would be gravely disadvantaged in its turn, as it depends upon there being a pool of reputable solicitors who are willing to under take this work. In [Boxall] Scott Baker J said that the fact that the claimants were legally aided was immaterial when deciding what, if any, costs order to make between the parties in a case where they were successful and he declined to order that each side should bear its own costs. It is, of course, true that legally aided litigants should not be treated differently from those who are not. But the consequences for solicitors who do publicly funded work are a factor which must be taken into account. A court should be very slow to impose an order that each side must be liable for its own costs in a high costs case where either or both sides are publicly funded. Had such an order been asked for in this case we would have refused to make it."
Submissions
"The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still being actively explored. Parties are warned that if the protocol is not followed (including this paragraph) then the Court must have regard to such conduct when determining costs."
It is also correctly noted that a claim for judicial review "must be filed promptly and in any event not later than three months after the grounds to make the claim first arose". A potential claimant cannot dally.
"Defendants should normally respond within 14 days using the standard format at Annex B. Failure to do so will be taken into account by the court and sanctions may be imposed unless there are good reasons."
"PLP points out that Boxall was decided before the protocol came into effect. PLP states that research shows that approximately 60% of judicial review cases are now settled following the letter of claim. Nevertheless some authorities wait to see whether proceedings will in fact be issued and whether permission will be granted before settling. Furthermore, many judicial review claims settle following the grant of interim relief, such as interim accommodation or an order for community care assessment. Yet the effect of Boxall is that claimants seldom recover costs in these cases. PLP propose that, if C has followed the protocol but D has not, there should be a presumption that D should pay C's costs. This would encourage reasonable litigation behaviour on the part of defendants. Also it would transfer the costs burden in many cases from the legal aid fund to the defendant authorities. Similar arguments are advanced by the firms of claimant solicitors mentioned above."
"The Boxall approach made eminently good sense at the time that case was decided. However, now that there is an extremely sensible protocol in place for judicial review claims, I consider the Boxall approach needs modification, essentially for the reasons which have been urged upon me during Phase 2.
. . . in any judicial review case where the claimant has complied with the protocol, if the defendant settles the claim after (rather than before) issue by conceding any material part of the relief sought, then the normal order should be that the defendant pays the claimant's costs. A rule along these lines would not prevent the court from making a different order in those cases where particular circumstances warranted a different costs order."
In its response to the Jackson Report in March 2011, the Ministry of Justice did not refer to the recommendation at 4.13.
"Defendants should normally respond within 14 days using the standard format at Annex B. Failure to do so will be taken into account by the court and sanctions may be imposed unless there are good reasons."
(i) The grant of ILR was wholly unrelated to the course of the judicial review proceedings.
(ii) In support of the submission that the result was not "plain and obvious", Mr Swift relied on the High Court decision in the Secretary of State's favour in ZO and on the grant of leave to appeal by the Supreme Court. It was not "plain and obvious" that the Supreme Court would dismiss the appeal.
(iii) In some of the cases, compromises were reached prior to the decision of the Supreme Court.
(iv) It was also submitted that because, under article 11(2) of the Directive, the Secretary of State retained a discretion "to decide conditions for granting access to the labour market", it was entirely possible that the appellants would be refused permission to work in the United Kingdom.
Comment
Timing
Conclusions
LORD JUSTICE SULLIVAN :
MR JUSTICE HEDLEY :