Darkwah Awuah, SJ, TN and Khadija Musu Momoh v The Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | McCloskey P,PRESIDENT OF THE UPPER TRIBUNAL,SITTING AS A JUDGE OF THE FIRST-TIER TRIBUNAL |
| Judgment Date | 22 June 2017 |
| Neutral Citation | [2017] UKFTT 555 |
| Court | First-tier Tribunal (Immigration and Asylum Chamber) |
| Date | 22 June 2017 |
[2017] UKFTT 555 (IAC)
First-tier Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice McCloskey, PRESIDENT OF THE UPPER TRIBUNAL, SITTING AS A JUDGE OF THE FIRST-TIER TRIBUNAL
and
THE PRESIDENT OF THE FIRST-TIER TRIBUNAL, Mr M Clements
For the Appellants SJ and TN: Ms Rebecca Chapman of counsel instructed by Wesley Gryk Solicitors
For the Appellant Awuah Ms Helen Foot of counsel, instructted by Sutovic & Hartigan Solicitors
For the Appellant Momoh Ms Helen Foot and Ms Rebecca Chapman, instructed by Nathan Aaron Solicitors
For the Respondent: Mr Rupert Cohen, of counsel, instructed by the Government Legal Department, on behalf of the Respondent
Awuah and Others (Wasted Costs Orders — HOPOs — Tribunal Powers)
(i) The First-tier Tribunal (“FtT”) is not empowered to make a Wasted Costs Order (“WCO”) against a Home Office Presenting Officer (“HOPO”).
(ii) The relationship of Secretary of State and HOPO is governed by the Carltona principle.
(iii) The answerability of HOPOs to the tribunal is achieved through a range of judicial functions and duties.
(iv) In every case where a WCO is in contemplation common law fairness requires that the respondent be alerted to this possibility, be apprised of the case against him and be given adequate time and opportunity to respond.
(v) While expedition and summary decision making are desirable in WCO matters, the basic requirements of fairness to the respondent must always be respected.
(vi) A causal nexus between the impugned conduct of the respondent and the costs unnecessarily incurred by the aggrieved party is an essential pre-condition of a WCO.
(vii) The tribunal's “own motion” power to make a WCO is to be exercised with restraint.
This is the judgment of the panel to which both members have contributed. It is provided in the context of four appeals to the First-tier Tribunal (the “FtT”) selected and conjoined for the purpose of promulgating guidance on certain aspects of the power of the FtT to make what is habitually described as a wasted costs order (hereinafter “WCO”).
As a result of careful and focussed case management a series of questions, both general and specific, has been formulated for the decision of the panel. The answers provided to the general questions transcend the boundaries of the four appeals. In contrast, the issues raised by the four appeals are case specific and their determination will be guided by, inter alia, the Tribunal's resolution of the general questions.
In this judgment [No 1] we address and determine the following questions:
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(i) Against whom can the FtT make a WCO? In particular, can such an order be made against a Home Office Presenting Officer (“HOPO”)?
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(ii) If the FtT is empowered to make a WCO against a HOPO, in what circumstances is such an order appropriate?
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(iii) What are the procedural and evidential requirements for making a WCO?
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(iv) In what circumstances is it appropriate for the FtT to make a WCO on its own initiative?
We begin by identifying the main provision of primary legislation and an important procedural rule. Section 29 of the Tribunals, Courts and Enforcement Act 2007 (the “2007 Act”) provides:
“ (1) The costs of and incidental to–
(a) all proceedings in the First-tier Tribunal, and
(b) all proceedings in the Upper Tribunal,
shall be in the discretion of the Tribunal in which the proceedings take place.
(2) The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid.
(3) Subsections (1) and (2) have effect subject to Tribunal Procedure Rules.
(4) In any proceedings mentioned in subsection (1), the relevant Tribunal may–
(a) disallow, or
(b) (as the case may be) order the legal or other representative concerned to meet,
the whole of any wasted costs or such part of them as may be determined in accordance with Tribunal Procedure Rules.
(5) In subsection (4) “wasted costs” means any costs incurred by a party–
(a) as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or
(b) which, in the light of any such act or omission occurring after they were incurred, the relevant Tribunal considers it is unreasonable to expect that party to pay.
(6) In this section “legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct the proceedings on his behalf.
(7) In the application of this section in relation to Scotland, any reference in this section to costs is to be read as a reference to expenses.”
Rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (the “2014 Rules”), in operation since 20 October 2014, provides:
“ (1) If the Tribunal allows an appeal, it may order a respondent to pay by way of costs to the appellant an amount no greater than—
(a) any fee paid under the Fees Order that has not been refunded; and
(b) any fee which the appellant is or may be liable to pay under that Order.
(2) The Tribunal may otherwise make an order in respect of costs only—
(a) under section 29(4) of the 2007 Act (wasted costs) and costs incurred in applying for such costs; or
(b) if a person has acted unreasonably in bringing, defending or conducting proceedings.”
Pausing here, whereas section 29 of the 2007 Act is directed to the litigation conduct of a party's “legal or other representative”, rule 9(2) widens the net so as to enmesh the conduct of parties to litigation.
In our decision in Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 0059 (IAC) we described rule 9(2) as a “ new power” to award costs: see [2]. In [5] we emphasised that section 29 and rule 9, in tandem, are the two core elements of the FtT wasted costs regime.
It is convenient at this juncture to rehearse what Cancino decided:
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[1] Rule 9 of the 2014 Rules operates in conjunction with section 29 of the Tribunals, Courts and Enforcement Act 2007.
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[2] The only powers to award fees or costs available to the First-tier Tribunal (the “FtT”) are those contained in Rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (the “2014 Rules”).
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[3] Transitionally, Rule 9 of the 2014 Rules applies only to appeals coming into existence subsequent to the commencement date of 20 October 2014. It has no application to appeals predating this date.
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[4] It is essential to be alert to the distinctions between the costs awarding powers contained in Rule 9(2)(a) and Rule 9(2)(b) of the 2014 Rules.
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[5] Awards of costs are always discretionary, even in cases where the qualifying conditions are satisfied.
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[6] In the ordinary course of events, where any of the offending types of conduct to which either Rule 9(2)(a) or Rule 9(2)(b) of the 2014 Rules applies, the FtT will normally exercise its discretion to make an order against the defaulting representative or party.
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[7] The onus rests on the party applying for an order under Rule 9.
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[8] There must be a causal nexus between the conduct in question and the wasted costs claimed.
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[9] One of the supreme governing principles is that every case will be unavoidably fact sensitive. Accordingly, comparisons with other cases will normally be inappropriate.
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[10] Orders for costs under Rule 9 will be very much the exception, rather than the rule and will be reserved to the clearest cases.
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[11] Rule 9 of the 2014 Rules applies to conduct, whether acts or omissions, belonging to the period commencing on the date when an appeal comes into existence and ending on the date of the final determination thereof.
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[12] The procedure for determining applications under Rule 9 of the 2014 Rules will be governed in the main by the principles of fairness, expedition and proportionality.
This question, in substance, asks whether the FtT is empowered to make a WCO against Home Office Presenting Officers (“HOPOs”). While this is a pure question of law it takes its colour from the context to which it belongs. This, we consider, must include the general “whats, why's and wherefores” of the HOPO: what are HOPOs and what do they do?
The latter question was one of those which arose in Home Office v the Information Commissioner and Yeo [2016] UKFTT 2015 0213 (GRC). There the evidence included a witness statement of Daniel Hobbs, formerly the Director of Appeals, Litigation and Subject Access Requests Directorate of the Home Office. This contains the following notable averments:
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(a) The Secretary of State for the Home Department (the “Secretary of State”) is represented in 98% of appeal hearings in the FtT and in all cases, both statutory appeals and judicial reviews, before the Upper Tribunal (the “UT”).
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(b) In the twelve month period ending in the second quarter of 2016 the FtT received 91,127 appeals. In the next succeeding twelve month period this figure was not significantly different. During each of these twelve month periods the total UT yearly intake of new cases was close to 30,000, divided roughly equally between new judicial reviews and appeals from the FtT or renewed applications for permission to appeal.
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(c) There are 145 HOPOs nationally distributed throughout nine Home Office centres. Of these 37 are Senior Presenting Officers (“SPOs”), who present all cases in the UT.
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(d) Many HOPOs have “ qualifications and experience in law”.
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(e) SPOs have the rank of Senior Executive Officer. All other HOPOs are of Higher Executive Officer grade which is the first “significant” management grade in the Civil Service. All...
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