R (on the Application of Bakhtiyar) v Secretary of State for the Home Department (Costs on Aos) (IJR)
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton,Clive Lane,Ockelton,Clive Lane UTJ |
| Judgment Date | 09 September 2015 |
| Neutral Citation | [2015] UKUT 519 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 09 September 2015 |
[2015] UKUT 519 (IAC)
In the Upper Tribunal (Immigration and Asylum Chamber)
Mr C M G Ockelton, VICE PRESIDENT
UPPER TRIBUNAL JUDGE Clive Lane
In the Matter of an Application for Judicial Review
Mr A Tear of Duncan Lewis Solicitors appeared behalf of the Applicant.
Ms N Greaney, instructed by the Government Legal Department appeared on behalf of the Respondent
R (on the application of Bakhtiyar) v Secretary of State for the Home Department (Costs on AoS) IJR
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1. The costs recoverable by the respondent on a Mount Cook basis include the costs incurred in considering whether to contest the claim and, if so, summarising the grounds of defence; they are to be assessed on the same basis as if the respondent had engaged a solicitor in private practice.
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2. The respondent in cases nominally brought against the Secretary of State is the government, and it is the government's costs that are recoverable.
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3. Internal payments and charges within government are not an indication of the government's recoverable costs, and cannot therefore demonstrate a breach of the indemnity principle.
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4. A rate of charge for the AoS that is below the relevant Guideline Hourly Rate for the relevant grade of lawyer is not shown to be unreasonably high and will be allowed on summary assessment.
The applicant, a national of Azerbaijan, came to the United Kingdom on 13 October 2013. Although he had a visit visa (valid for only a short time thereafter) he was refused entry as a visitor. He thereupon claimed asylum. He was refused asylum; an appeal was dismissed and permission to appeal to the Upper Tribunal was refused. On 6 December he made an application for assisted voluntary return to his own country, and by 9 December all his appeal rights had been exhausted. His application for assisted voluntary return was approved, whereupon he withdrew it. On 3 January 2014 removal directions were set for 10 January. On 6 January he made further submissions, and on 9 January, the day before his proposed removal, he filed a judicial review application with the Upper Tribunal, also seeking urgent consideration and interim relief by way of a stay on his removal.
The application for interim relief was dealt with by Judge Latter who granted the stay, but observed as follows:
“Whilst I have considerable concerns about why further representations relying on a newspaper article published on 5 December 2013 were only made on 8 January 2014 when notice was given on 3 January 2014 of removal directions for 10 January 2014, I cannot at this stage discount the possibility that the application for a fresh claim might not be completely devoid of merit. In these circumstances I am satisfied that this is a proper case for a stay on removal pending consideration of the fresh claim and in particular the provenance and reliability of the newspaper article relied on, and if an adverse decision is reached, the applicant and his representatives having a reasonable opportunity of considering a decision.”
The next step was for the Secretary of State to put in her acknowledgement of service and summary grounds (“AoS”). The AoS was submitted on 20 February 2014. The Secretary of State also sought prompt consideration of the applicant's claim, because he remained in detention. The summary grounds of defence run to 11 pages; 22 pages of documents are appended to them. The grounds begin by setting out the recent history, including reference to a new decision dated 20 February 2014. They then set out the applicant's immigration history at paragraph 3. Paragraphs 4 to 26 set out the relevant law in general terms. Paragraphs 27 to 28 summarise the applicant's grounds. Paragraphs 29 to 33 set out the respondent's case. Paragraph 34 summarises the latter, and seeks an order that the applicant pay the respondent's costs for “filing the Acknowledgement of Service, summary assessed at £400 (based on 2 hours time spent at £200 per hour)”. The appended documents include the respondent's decision letters of 16 January 2014 and 20 February 2014, both of which post-date the issue of the claim.
The application for permission came before Judge Storey on the papers. He refused permission. He noted as follows:
“In November 2013, the First-tier Tribunal had concluded that the Applicant had not given a credible account of risk on return in Azerbaijan. The Respondent has since considered the new evidence relied on by the Applicant, including the newspaper and online articles, and was quite entitled to find that it was unreliable, applying Tanveer Ahmed principles.
As regards Article 8, it is clear that the applicant could not meet the requirements of the Immigration Rules. The evidence placed before the Respondent – on the Applicant's own account he had only come to the UK in October 2013 – failed to disclose any compelling or exceptional circumstances such as might justify a grant of leave outside the Immigration rules on Article 8 grounds.
The Respondent was entitled to conclude that there was no realistic prospect of a hypothetical tribunal judge applying anxious scrutiny and considering both the new materials and those considered previously, finding in the Applicant's favour.”
Judge Storey also directed that oral renewal of the application for permission was not without further order to operate as a bar to the applicant's removal from the United Kingdom.
There has, so far as we are aware, been no subsequent challenge to those parts of Judge Storey's order. It is not now suggested that the applicant's claim is, or ever was, properly arguable.
Judge Storey also ordered the applicant to pay the respondent's costs of the AoS in the sum of £400, unless within seven days from the date of his decision the applicant notified the Tribunal in writing that he objected to paying costs, or to the amount to be paid, in either case giving reasons. It is the issue of costs that remains outstanding. Again through his solicitors, the applicant appears to acknowledge his liability in principle to pay costs, but objects to the amount. The objection has, in the time since Judge Storey's order, separated into two strands. The first strand relates to the time spent on preparing the AoS. On considering the applicant's challenge, the Government Legal Department conceded that the charge for two hours' work was incorrect: the appropriate charge was for one hour, twelve minutes, that is to say twelve (6-minute) units of time.
The second strand of challenge, the live issue before us, relates to the Government Legal Department's hourly rate. The applicant argues that the Secretary of State is not entitled to costs based at a rate of £200 per hour, for two reasons. First, he asserts that costs paid at that level would breach the indemnity principle: that is to say, the Secretary of State would receive more than she is required to pay the Government Legal Department for the latter's services. Secondly, the applicant claims that the amount of £200 an hour is unreasonably high.
The application before us raises issues in relation to five separate but interlocking principles. The first, the “ Mount Cook principle”, is derived from the decision of the Court of Appeal in Mount Cook Land Ltd and another v Westminster City Council [2003] EWCA Civ 1346. In judicial review proceedings a defendant who has filed an AoS and successfully resists the application for permission is generally entitled to recover the costs of doing so but (again generally) no more than that. Mount Cook itself is largely concerned with the circumstances in which such a defendant may be awarded the costs of attending an oral permission hearing, but it confirms the decision of Collins J in R (Leach) v Commissioner for Local Administration [2001] EWHC 445 (Admin) in relation to the costs of the AoS. The reasons why those costs are recoverable is that given by Collins J and summarised in Mount Cook at [54]:
“Since the new procedure imposes on a defendant who seeks to take part in and contest a judicial review claim an obligation to file an acknowledgment of service containing a pleading of his case, it is only fair that he should be awarded his costs if, as a result, he successfully resists it at the permission stage.”
In the course of his submissions, Mr Tear argued that Mount Cook costs are limited to the actual acknowledgment of service itself, that is to say (in time terms) the time spent in filling in the form and writing the summary grounds of defence, with no allowance for reading the file or other preparation. We suppose that submission is based on a phrase used by Collins J in Leach at [15], where he refers to the ‘costs incurred in actually producing the acknowledgement’. But the submission is clearly wrong. As Auld LJ giving the lead judgment in Mount Cook said at [51]:
“There is now a positive obligation on a defendant or other interested party served with the claim form to acknowledge service and to consider in doing so: 1) whether to contest the claim, and, if so, on what grounds and at what stage; and 2) if he decides to contest it, to summarise his grounds at the permission stage.”
That is the obligation imposed on the defendant, and it follows that that is the work for which he can claim his costs. An interpretation of the principle as allowing costs only for a lesser amount of work would be inconsistent with the reasoning of both Collins J and the Court of Appeal.
The second principle is the “indemnity principle”. An award of costs is compensation (or, more usually, partial compensation) for the successful party's expenditure on legal advice and assistance. The award of costs is made to the party, but it is...
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