R (on the Application of Okondu and Abdussalam) v Secretary of State for the Home Department (Wasted Costs; SRA Referrals; Hamid) IJR
| Jurisdiction | UK Non-devolved |
| Judge | MR JUSTICE GREEN |
| Judgment Date | 20 August 2014 |
| Neutral Citation | [2014] UKUT 377 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 20 August 2014 |
[2014] UKUT 377 (IAC)
IN THE UPPER TRIBUNAL
The Honourable Mr Justice Green
And
Upper Tribunal Judge Gill
Mr Okondu (the first Applicant) was not present or represented.
Mr S Harding Counsel appeared in the case of Mr Abdussalam (the second Applicant). The Applicant's representatives were G Singh Solicitors.
Mr M Donmall, instructed by the Treasury Solicitor appeared on behalf of the Respondent in both cases.
R (on the application of Okondu and Abdussalam) v Secretary of State for the Home Department (wasted costs; SRA referrals; Hamid) IJR
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(1) Section 29 of the Tribunals, Courts and Enforcement Act 2007 confers on the Upper Tribunal a discretionary power to order a legal or other representative to pay “wasted costs” incurred by the other party. “Wasted costs” are defined in section 29(5) as 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.” The words: “improper, unreasonable or negligent act or omission” are explained in Ridehalgh v Horsefield [1994] EWCA Civ 40 . Rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 is also relevant. It provides (inter alia) that the Upper Tribunal may not make an order in respect of costs except in judicial review proceedings, under section 29(4) of the TCEA and “if the Upper Tribunal considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings”. The wasted costs jurisdiction applies to all parties. It can arise in the case of a winning party whose conduct, on the way to success, has fallen below the requisite standard and caused wasted costs to be incurred by the losing party.
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(2) The overriding duty of all representatives is to the court or the Tribunal. It is improper for any practitioner to advance arguments which they know to be false or which they know, or should know, are inconsistent with their own evidence, including medical or other expert evidence. It is also incumbent upon practitioners to ensure that the Tribunal is provided with a fair and comprehensive account of all relevant facts, whether those facts are in favour or against the legal representative's client. It will also not be acceptable to say that as of the date of the service of the application the representative was not in possession of all relevant facts because of time constraints. Time pressures might mean that applications that are less than perfect or comprehensive or complete might in actual fact reflect the very best that can be done in urgent circumstances. However, this does not excuse a failure, following service of the application, to complete the fact finding and verification exercise, and then seek to amend the application accordingly so as to ensure that the Tribunal is fully informed of the relevant facts and matters.
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(3) The attention of representatives is drawn to the judgment of the High Court (Divisional Court) in R (on the application of Hamid) v SSHD [2012] EWHC 3070 (Admin) , the importance of which is underscored. Given the assumption by the Upper Tribunal of much of the jurisdiction of the High Court for dealing with judicial reviews in the field of immigration, the Tribunal will, as it has in this case, adopt a similar procedure in those circumstances where it considers it appropriate to do so.
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(4) The Upper Tribunal recognises that applicants with weak cases are entitled to seek to advance their case and have it adjudicated upon; that is a fundamental aspect of having a right of access to a court. But there is a wealth of difference between the advancing of a case that is held to be unarguable in a fair, professional and proper manner and the advancing of unarguable cases in a professionally improper manner.
: There are before the Tribunal two renewed applications for permission to apply for judicial review. Both cases raise an issue of some importance concerning the jurisdiction of the Upper Tribunal in relation to the making of wasted costs orders and as to the circumstances when the Tribunal might refer the conduct of legal representatives to the Solicitors Regulation Authority (“SRA”). In both cases, Upper Tribunal Judge Rintoul made a direction in an Order sealed on 3 March 2014 that the parties must lodge with the Tribunal skeleton arguments dealing with, inter alia, the issue of wasted costs against the legal representatives. We heard oral argument on both the jurisdiction of the Tribunal to make such orders and as to the circumstances in which the jurisdiction should be exercised on 20 May 2014. The jurisdiction of the Upper Tribunal to hear judicial reviews is a relatively recently-acquired jurisdiction and it is appropriate, at this early stage, to lay down some markers as to the jurisdiction and power of the Upper Tribunal to ensure that legal and other representatives acting for applicants in judicial review proceedings act in a manner which is commensurate with their duty towards the Tribunal. To date, there have been three cases that deal with the issue of costs in the Upper Tribunal: R (LR) v. First-tier Tribunal (HESC) and Hertfordshire CC (Costs) [2013] UKUT 0294 (AAC); R (Kumar and another) v. SSHD [2014] UKUT 00104 (IAC) and the judgment of the Court of Appeal in R (TH (Iran)) v East Sussex CC [2013] EWCA Civ 1027.
We start by setting out the jurisdiction of the Tribunal with regard to costs. We then consider the application of those powers to the individual applications for permission to apply for judicial review before us and we finally consider alternate powers available to the Tribunal under the heading of a general warning to practitioners.
The jurisdiction to award costs emanates from section 29 of the Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”). Section 29 TCEA 2007 confers upon the First-tier Tribunal and the Upper Tribunal a “ discretion” to determine the costs “of and incidental to” proceedings in the First-tier Tribunal and Upper Tribunal. Indeed section 29(1)(a) and (b) make it clear that this power applies to “ all” proceedings before the Upper Tribunal. Pursuant to section 29(2) each Tribunal has the “ full power” to determine both by whom costs are to be paid and as to the extent.
Section 29 also contemplates the making of a “wasted costs” order. The jurisdiction is conferred by section 29(4) which provides as follows:
“(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.”
The powers are subject to Tribunal Procedure Rules: section 29(3) and (4).
Section 29(5) provides a definition of “wasted costs”. These mean:
“(5) …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.”
Section 29(5) thus makes clear that wasted costs may be costs ordered against a winning or a losing party. Although the point should be obvious this means that wasted costs may be awarded against either side to proceedings and regardless of whether they win or lose.
The concepts on “improper” “unreasonable” and “negligent” are well known terms and have been subjected to judicial analysis upon a number of occasions in the context of wasted costs. In Ridehalgh v. Horsefield [1994] EWCA Civ 40, Sir Thomas Bingham MR, interpreting the words “improper, unreasonable or negligent” in section 51 of the Supreme Court Act 1981, stated:
“Improper” … covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.
“Unreasonable” also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable.
The term “negligent” …… should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession.
In adopting an untechnical approach to the meaning of negligence in this context, we would however...
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