MSM and Others (Wasted Costs, Effect of S.29(4))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Dawson |
| Judgment Date | 15 January 2016 |
| Neutral Citation | [2016] UKUT 62 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 15 January 2016 |
[2016] UKUT 62 (IAC)
THE IMMIGRATION ACTS
Upper Tribunal Judge Dawson
Upper Tribunal Judge O'Connor
For the 1st Appellant: Mr Adam Tear, instructed by Duncan Lewis Sols For Mr S Chelvan and Ms V Hutton: Mr D Stacy, instructed by Clyde & Co
For the 2nd to 4th AppellantsNo appearance
For the Respondents: Ms D J Rhee, instructed by Government Legal Dept
MSM and others (wasted costs, effect of s.29(4))
Section 29(4) of the Tribunals, Courts and Enforcement Act 2007 results in the Upper Tribunal having powers in relation to the making of wasted costs orders (as defined in section 29(5)) which are not subject to the limitations in s.29(3) or r.10 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
The question we are required to answer in these proceedings is whether the Upper Tribunal acting in its appellate capacity has power, pursuant to Section 29 of the Tribunals, Courts & Enforcement Act 2007 (“the 2007 Act”) or otherwise, to make a costs order in proceedings that began in the First-tier Tribunal (Immigration and Asylum Chamber) prior to the commencement on 20 October 2014 of the Tribunal Procedure (First-tier Tribunal) (Immigration & Asylum Chamber) Rules 2014 (“the FtT 2014 Rules”). Both members of the Tribunal have substantially contributed to this decision.
The case involving the first named Appellant (referenced as [2015] UKUT 413) concerns an appeal by a national of Somalia, which began life in the First-tier Tribunal in response to a decision of the First Respondent (“the Secretary of State”) dated 2 January 2014, refusing an application for asylum. This appeal was dismissed by the First-tier Tribunal on 18 March 2014. Permission to appeal to the Upper Tribunal was subsequently granted and the determination of the First-tier Tribunal was set aside following a hearing on 29 May 2014. After hearings on 24 March and 28 April 2015 the Upper Tribunal remade the decision allowing the First Appellant's appeal.
The circumstances giving rise to the adjournment of the hearing on 24 March led to an application by the Secretary of State for a wasted costs order. It is the contention of the First Appellant's solicitors and his counsel (who are separately represented) that:
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(i) The Upper Tribunal does not have power to make an order for wasted costs in the instant proceedings.
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(ii) If the Upper Tribunal does have such power, then an order should not be made because (a) the application for a wasted costs order was made out of time and there has been no ‘formal’ application to extend time and, in any event, (b) the circumstances of the case are such that it is not appropriate to make such an order.
Proceedings IA/13403/2012 (the Second Appellant herein); OA/09812/2012 and OA/09851/2012 (the Third and Fourth Appellants' herein) relate to appeals brought by nationals of Nepal.
The Second Appellant's appeal against a decision made on 29 May 2012 refusing him indefinite leave to remain was dismissed by the First-tier Tribunal on 18 February 2013. In a decision of the 9 May 2013 the Upper Tribunal found no error of law in the First-tier Tribunal's determination. However, the Second Appellant pursued an appeal to the Court of Appeal, which subsequently remitted the matter to the Upper Tribunal. By way of a decision of the 18 September 2014 the Upper Tribunal allowed the Second Appellant's appeal as a consequence of a concession made by the Secretary of State. Thereafter the Second Appellant made an application “for costs under r.10(3) and r.10(5) of the Tribunal Procedure (Upper Tribunal) Rules 2008” in which it was submitted that it was unreasonable of the Secretary of State to delay making the concession until the day of the hearing before the Upper Tribunal.
The proceedings by the Third and Fourth Appellants' (who are brothers) arose out of decisions of the Second Respondent dated 22 December 2011 refusing their applications to settle in the United Kingdom with their father, a Gurkha veteran. Their appeals were dismissed by the First-tier Tribunal on 21 November 2012, a decision confirmed by the Upper Tribunal on 24 May 2013. The appeals were subsequently remitted by the Court of Appeal for rehearing by the Upper Tribunal and were thereafter allowed on 8 October 2014. The Third and Fourth Appellants' solicitors made an application for costs under r.10(3) and r.10(5) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Upper Tribunal Rules”), on the basis that it was unreasonable of the Entry Clearance Officer to delay making a concession central to the outcome of the appeal until the day of the hearing.
The Respondent in the proceedings involving the Third and Fourth Appellants' initially opposed the application for costs on the basis that the Upper Tribunal did not have power to make a costs order. This position was abandoned by the Respondent at the hearing before us when the Secretary of State and Entry Clearance Officer adopted, for all the appeals, the submissions as to jurisdiction set out in support of the application for wasted costs in [2015] UKUT 413.
The solicitors for the Second, Third and Fourth Appellants did not have any instructions to attend the hearing before us on 15 October 2015. They indicated that they adopted the submissions advanced by the Secretary of State in [2015] UKUT 413 that the Upper Tribunal does have a jurisdiction to make an order for costs where the proceedings before the First-tier Tribunal were begun prior to 20 October 2014.
We heard submissions from Ms Rhee instructed by the Government Legal Department, Mr Tear instructed by Duncan Lewis solicitors for the First Appellant and by Mr Stacy instructed by Clyde & Co on behalf of Mr Chelvin and Ms Hutton, counsel for the First Appellant in the substantive proceedings heard before the Upper Tribunal on 24 March and 27 April 2015. The parties prepared for the hearing on the basis that our consideration would be confined to that of jurisdiction.
Section 29 of the 2007 Act provides in material part as follows:
S.29 costs or expenses
“(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) Sub-sections (1) and (2) have effect subject to Tribunal Procedure Rules.
(4) In any proceedings mentioned in sub-section (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 the Tribunal Procedure Rules.
(5) In sub-section (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) […]”
Rule 10 of the Upper Tribunal (Procedure Rules) 2008 (as amended) (“The Tribunal Procedure Rules”) is in these terms:
“(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:
(aa) in a national security certificate appeal, to the extent permitted by paragraph (1A);
(a) in proceedings transferred by or on appeal from, the Tax Chamber of the First-tier Tribunal; or
(b) to the extent and in the circumstances that the other Tribunal had the power to make an order in respect of costs (or, in Scotland, expenses).
(1A) […]
(2) […]
(3) In other proceedings, the Upper Tribunal may not make an order in respect of costs or expenses except –
(a) in judicial review proceedings;
(b) [revoked]
(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 representatives has acted unreasonably in bringing, defending or conducting proceeding;
(e) […]
(f) […]”
Rule 9 of the FtT 2014 Rules is as follows:
“9. — Orders for payment of costs and interest on costs (or, in Scotland, expenses)
(1) If the tribunal allows an appeal, it may order a Respondent to pay by way of cost 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.”
Rule 23A of the now repealed Asylum and Immigration Tribunal (Procedure) Rules 2005 (“AIT 2005 Rules”) provided:
“23A
(1) Except as provided for in paragraph (2), the Tribunal may not make any order in respect of costs (or, in Scotland, expenses) pursuant to Section 29 of the Tribunals, Courts & Enforcement Act 2007, power to award costs.
(2) If the Tribunal allows an...
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