Bahta (R) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PILL,LORD JUSTICE SULLIVAN,MR JUSTICE HEDLEY |
| Judgment Date | 26 July 2011 |
| Neutral Citation | [2011] EWCA Civ 895 |
| Docket Number | Case Nos: C4/2011/0082, C4/2010/2346,C4/2010/2403, C4/2010/3033, C4/2011/0609 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 July 2011 |
[2011] EWCA Civ 895
Lord Justice Pill
Lord Justice Sullivan
and
Mr Justice Hedley
Case Nos: C4/2011/0082, C4/2010/2346,C4/2010/2403, C4/2010/3033, C4/2011/0609
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Wilson QC and Philip Nathan (instructed by Duncan Lewis) for the 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 2 nd Intervener (written submissions only)
Hearing dates: 17 June 2011
These are appeals against decisions as to costs made by High Court Judges in immigration cases following consent orders. AK appeals against an order of Mitting J dated 15 September 2010, TZ (Eritrea) against an order of Lloyd Jones J dated 23 September 2010, RO against a decision of Mitting J dated 20 December 2010, Filmon Bahta against an order of King J dated 21 December 2010 and KD against an order of Edwards-Stuart J dated 17 February 2011. Following orders whereby disputes between the appellants and the Secretary of State for the Home Department ("the Secretary of State") were resolved without a contested court hearing, each judge declined to make an order for costs in the appellants' favour.
The appeal raises a question of general application, given the bulk of cases, in the immigration jurisdiction but applies across the judicial review public law jurisdiction. Public authorities do on occasions grant the relief sought by the claimant, or other substantial relief, at some stage in the proceedings and substantial costs may have been incurred. For the appellants, Mr Wilson QC submitted that, in refusing costs to the appellants, the judges have erred in law. It was submitted that they have not correctly applied the principles stated by Scott Baker J in R (Boxall) v Waltham Forest LBC 21 December 2000 (2001) 4 CCL Rep 258 and, further or in the alternative, the test stated in that case should be modified in the light of current circumstances and the recommendation of Jackson LJ, following his Review of Civil Litigation Costs: Final Report, dated December 2009 ("the Jackson Report"). There is also an issue as to whether the court has jurisdiction to hear these appeals.
The appellants were seeking, by judicial review, either permission to work in the United Kingdom, or indefinite leave to remain, the grant of which includes permission to work. The applications were based on rights granted by Immigration Rule 360 and article 11 of the Reception Directive. For present purposes there is no need to consider the instruments in detail. After 12 months an applicant for asylum should be allowed to work, the right in the United Kingdom not including self-employment or involvement in business.
In the course of proceedings, the appellants were granted what they sought and their applications were withdrawn by consent. Little turns on the differences of fact between the cases and I will keep references to a minimum. A cause of the delay in granting the relief sought was that the Secretary of State was awaiting the outcome of the decision of the Supreme Court in ZO and Others v Secretary of State for the Home Department [2010] UKSC36; [2010] 1 W.L.R. 1948. The issue in that case was whether the right to work was available to repeat or subsequent asylum seekers, as distinct from primary asylum seekers. The Secretary of State contended that it was not. Four of the appellants were repeat asylum seekers; KD was a primary asylum seeker and not subject to the ZO issue. Reversing High Court decisions, this court found against the Secretary of State in ZO and Others v Secretary of State for the Home Department [2009] EWCA Civ 442; [2009] 1 W.L.R. 2477 on 20 May 2009. On 28 July 2010, the decision of the Court of Appeal was upheld in the Supreme Court.
Indefinite leave to remain was granted to AK by the Secretary of State on 15 March 2010, to TZ on 10 March 2010, to RO on 16 August 2010 and to Bahta on 23 December 2009, following permission to work granted shortly before. All four fresh applications for asylum were made in 2007 so that the relief was granted in each case substantially later than the period of 12 months contemplated in the Directive and well after the Court of Appeal decision on 20 May 2009. KD was granted permission to work on 6 September 2010.
The judges differed in their views as to the date at which the claim for costs should be assessed, between the date of commencement of proceedings (RO and TZ), the date the claim was withdrawn (Bahta), any date before the Supreme Court judgment in ZO (AK), and the date on which it was decided to adjourn the judicial review claim for an oral hearing (KD). The appellants submitted that the correct date was the date on which the decision as to costs was made. In seeking permission to work, the appellants relied on paragraph 360 of the Immigration Rules and article 11 of the Reception Directive.
In refusing the appellants' applications for costs, the judges either referred to, or plainly had in mind, the decision of Scott Baker J in Boxall. Scott Baker J stated, at paragraph 22:
"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).
In AK, Mitting J stated:
"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."
In TZ, Lloyd Jones J stated:
"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."
In RO, Mitting J stated:
"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."
In Bahta, King J stated:
"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 14 th 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 17 th and...
To continue reading
Request your trial
-
Ersus v London Borough of Redbridge
...good this submission lay on the council. The position was, Mr Nabi submits, similar to that in the case of R (on the application of Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895. Mr Nab submits that it is unfair, effectively, to penalise the appellant for not being......
-
R Poomah and Others v SSHD
...Ms Ward who has presented the argument before me today efficiently and expertly relied particularly on R (on the application of Bahta) v The Secretary of State for the Home Department [2011] EWCA Civ 895. She particularly relies on the fact that this court there rejected the argument made b......
-
Semere Tesfay and Others v Secretary of State for the Home Department
...should be that the defendant pays the claimant's costs. 8 R (on the application of Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895 concerned appeals against costs decisions in immigration cases following consent orders. The Secretary of State had delayed in respondi......
- R (on the application of Gourlay) v Parole Board
-
The Law Is The Law - And It Pays To Remember That
...for the helpful interventions by the Public Law Project and the General Council of the Bar. Footnotes Bahta & Others v SSHD [2011] EWCA Civ 895, previously known as 'AK', para 2 R (Boxall) v Waltham Forest LBC 21 December 2000 (2001) 4 CCL Rep 258 ZO and Others v Secretary of State for ......