Ernesto Garcia Cancino v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice McCloskey,Mr M Clements,McCloskey J |
| Judgment Date | 28 January 2015 |
| Neutral Citation | [2015] UKFTT 59 |
| Court | First-tier Tribunal (Immigration and Asylum Chamber) |
| Date | 28 January 2015 |
[2015] UKFTT 59 (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, First-tier Tribunal, Mr M Clements
Appellant: Ms J Fisher (of Counsel) instructed by Visa Legal Solicitors
Respondent: Mr T Wilding, Senior Home Office Presenting Officer
Cancino (costs — First-tier Tribunal — new powers)
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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 is the judgment of the panel to which both members have contributed. This appeal, the substantive disposal whereof was completed on 20 October 2014, has been listed for the purpose of determining the Appellant's application for costs against the Respondent (hereinafter the “ Secretary of State”). Furthermore, this case has been selected for the purpose of providing guidance on the exercise of the recently acquired power of the First-tier Tribunal (the “ FtT”) to award costs in certain circumstances.
Until recently, the FtT was endowed with the limited power to award costs contained in the now repealed Asylum and Immigration Tribunal (Procedure) Rules 2005, rule 23A whereof, operative from 19 December 2011, provided:
Thus the FtT was enabled, through the exercise of a discretionary power, to order the Respondent to pay the successful Appellant's fees. There was no costs awarding power.
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“ (1) Except as provided for in paragraph (2), the Tribunal may not make an order in respect of costs (or, in Scotland, expenses) pursuant to section 29 of the Tribunals, Courts and Enforcement Act 2007 (Power to Award Costs).
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(2) If the Tribunal allows an appeal, it may order the respondent to pay to the appellant an amount no greater than —
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(a) Any fee paid under the Fees Order that has not been refunded; and
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(b) any fee which the appellant is or may be liable to pay under that Order.”
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With effect from 20 October 2014, the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (the “ 2014 Rules”) came into operation, in substitution for the predecessor regime. Rule 9(1) of the 2014 Rules replicates precisely its predecessor, Rule 23A of the (now superseded) 2005 Rules. It 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.”
Rule 9(2) contains the new power to award costs. It provides in material part:
“(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.”
The whole of Rule 9 is reproduced in Appendix 1. The new framework has two other basic components of which judges and practitioners must be aware. The first is the Presidential Guidance Note No 1 of 2014, paragraphs 29 – 35 whereof are contained in Appendix 2 hereto. There is also a relevant provision of primary legislation, namely section 29 of the Tribunals, Courts and Enforcement Act 2007, which provides:
This is reproduced in Appendix 3. We shall comment further on section 29 infra.
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“(1) The costs of and incidental to—
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(a) all proceedings in the First-tier Tribunal, and
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(b) all proceedings in the Upper Tribunal, shall be in the discretion of the Tribunal in which the proceedings take place.
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(2) The relevant Tribunal shall have full power to determine by whom and to what extent the costs are to be paid.
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(3) Subsections (1) and (2) have effect subject to Tribunal Procedure Rules.
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(4) In any proceedings mentioned in subsection (1), the relevant Tribunal may—
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(a) disallow, or
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(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.
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(5) In subsection (4) “wasted costs” means any costs incurred by a party—
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(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
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(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.
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(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.
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(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.”
As regards proceedings in the Upper Tribunal, the relevant provision is rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008, as amended, (contained in Appendix 4 hereto) which, so far as material, provides as follows:
“ 10.—(1) The Upper Tribunal may not make an order in respect of costs (or, in Scotland, expenses) in proceedings [transferred or referred by, or on appeal from,] another tribunal except—
(3) In other proceedings, the Upper Tribunal may not make an order in respect of costs or expenses except—
….
(c) under section 29(4) of the 2007 Act (wasted costs) [and costs incurred in applying for such costs];
(d) if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings.”
Thus rule 10(3)(a) of the Upper Tribunal Rules mirrors rule 9(2)(a) of the 2014 Rules. However, it is noteworthy that rule 10(3)(d) is couched in slightly different language, extending to a party's representative.
Judges and practitioners should be aware that rule 9 of the 2014 Rules contains the only powers to award costs exercisable by the FtT. Thus rule 9 establishes an exclusive regime. These powers are not amplified in any way by section 29 of the 2007 Act. This is the effect of section 29(3). However, rule 9 and section 29 co-exist. We shall elaborate on the nature of this relationship below.
In every case where the FtT is contemplating either a fee award or an award of costs under rule 9, the Judge must be aware that a discretion is being exercised. This flows from the language of section 29 of the 2007 Act and rule 9 itself. Judges should bear in mind that this discretion is to be exercised judicially. Thus its exercise is to be informed by taking into account all material considerations and disregarding any alien, or immaterial, factors. Furthermore, it must be exercised in good faith and in furtherance of the underlying statutory purpose. The power must not be exercised irrationally. And it must be exercised in a procedurally fair manner. In short, all of the familiar standards and constraints of public law are engaged.
Judges must also bear in mind that where they are persuaded that the relevant qualifying condition is satisfied, the making of a costs order does not follow inexorably. Rather, it is discretionary. Under rule 9(2)(a), the qualifying condition is that the party seeking the order has incurred costs 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. Under rule 9(2)(b), the qualifying condition is that a person has acted unreasonably in bringing, defending or conducting proceedings. There is a further, discrete discretion to be exercised. This relates to the amount of costs to be specified in any order made under either limb of rule 9....
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