R (on the application of Khan and Others) v Home Secretary
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton |
| Judgment Date | 02 October 2015 |
| Neutral Citation | [2015] UKUT 684 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 02 October 2015 |
[2015] UKUT 684 (IAC)
In the Upper Tribunal (Immigration and Asylum Chamber)
Mr C M G Ockelton, VICE PRESIDENT
In the Matter of an Application for Judicial Review
The Queen on the Application of
No appearance by the 1 st Applicant.
Mr G Davidson, instructed by Adam Bernard Solicitors, appeared on behalf of the 2 nd Applicant.
Mr Swain, instructed by Eagle Solicitors, appeared on behalf of the 3 rd Applicant.
Mr M Biggs, instructed by Mayfair Solicitors, appeared on behalf of the 4 th and 5 th Applicant.
Mr Pennington-Benton, instructed by Farani Javid Taylor Solicitors, appeared on behalf of the 6 th Applicant.
Mr Z Malik and Mr N Ahmed, instructed by BLC Solicitors, appeared on behalf of the 7 th Applicant.
Mr W Hansen, instructed by the Government Legal Department appeared on behalf of the Respondent.
R (on the application of Khan and Others) v Secretary of State for the Home Department (common costs) IJR
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1. The Tribunal has jurisdiction to make a Common Costs Order in appropriate cases.
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2. That jurisdiction will, however, be exercised only on the basis of establishing facts demonstrating the total amount of costs in question and the number of cases to which that total is attributable.
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3. If ETS cases are pursued to an oral hearing at which there is no prospect of success, the Tribunal will consider whether the case should be treated as an exception to the Mount Cook principles.
The “ETS cases” arise from decisions refusing to extend, or effectively terminating, a large number of individuals' leave to remain in the United Kingdom. Following a broadcast investigation by the television programme “Panorama” and internal review by Educational Testing Services itself, the conclusion was reached that many English language certificates issued by ETS had been obtained in a fraudulent manner, because thousands of tests had been undertaken not by the person named on the certificate but by somebody else. The effect of this discovery, and the Secretary of State's action on it, varied between individuals. Some had an in-country right of appeal against the decision about their leave; others had or have a right of appeal exercisable only from outside the United Kingdom. Efforts by substantial numbers of those in the latter class to maintain judicial review proceedings have been met by the Secretary of State's argument that permission should be refused because there is an adequate alternative remedy in the form of the out-of-country appeal, prescribed by Parliament in their case. The Secretary of State's argument to that effect has been accepted; and it is clear that, for those who have an out-of-country right of appeal, judicial review will not lie save in a small minority of cases that are in some way exceptional. I do not need to give any more detail about the background, which is set out in detail in judgments by Beatson LJ in R (Mehmood and Ali) v SSHD [2015] EWCA Civ 744 and R (Sood) v SSHD [2015] EWCA Civ 831.
The claims for judicial review fall for determination by this Tribunal in those cases covered by the Lord Chief Justice's direction under s.18(6) of the Tribunals, Courts and Enforcement Act 2007, and otherwise by the High Court. Many of the claims were stayed awaiting the judgments of the Court of Appeal to which I have referred. When those judgments were both available, the Tribunal's staff began, on judicial authority, a process of writing to the individual claimants inviting them to say whether, in the light of the authoritative statements of the law now available, they wished to proceed with their claim and, if they did, requiring them to submit amended grounds within a specified timescale, failing which their applications would be automatically struck out. Undaunted by the weight of authority apparently against them, some hundreds of applicants have submitted amended grounds and a sample group has been listed for hearing before the President and myself. The substantive hearing of those cases was on 2 and 5 October, and judgments will follow in due course.
A subsidiary matter, raised by the Secretary of State as part of the proceedings on 2 October, was an issue as to costs. That issue was heard and dealt with by myself sitting alone. I gave a short oral decision at the conclusion of the hearing. This judgment constitutes the full written reasons.
The issues were presented by Mr Hansen in his skeleton argument on behalf of the Secretary of State, on which he also made oral submissions. His submissions were predicated on the Secretary of State's success in one or more of the individual cases heard on 2 and 5 October; but they are of general application and it is appropriate to reach a general conclusion about them. The Secretary of State applies for an award of costs as common costs. She seeks, as against each unsuccessful applicant for judicial review, an order that, in addition to paying the defendant's costs of the Acknowledgment of Service attributable to that particular case, each pay an apportioned part of a larger sum. That sum is the total amount of Counsel's costs incurred by the Secretary of State in taking advice on the ETS cases as a whole, so enabling her to formulate a common response to the large number of individual claims. The Secretary of State proposes the calculation of the common costs on the following basis. She has spent £29,745.80 on Counsel's fees. The “total number of ETS claims” is 2,539. She therefore seeks an additional £11.72 against each claimant, that being the former sum divided by the latter. The claim is made on the basis that that calculation provides a fair attribution of the total cost to each individual applicant.
Mr Hansen referred me briefly to the power of the Upper Tribunal in relation to costs, deriving primarily from s.29 of the 2007 Act, and, perhaps, to an extent augmented or supplemented by the powers in s.25. He reminded me that an order for common costs may be made in relation to individual claims that have not been consolidated ( Bairstow v Queens Moat Houses plc [Nelson J, 14 April 2000]). He cited the observation of Smith LJ in Russell Young & Co v Kevin Brown & Others [2007] EWCA Civ 43 at 31:
“There is nothing fundamentally different or special about generic costs; they are simply costs that have been shared for the sensible purpose of keeping the costs of each claim down. I could see no merit in the suggestion that some special rule applies to the generic element of a bill of costs.”
Mr Hansen also referred me to the discussion of the calculation of the generic costs by Jay J in Haynes v Department for Business Innovation and Skills [2014] EWHC 643.
In my judgment, there is no serious room for doubt that the Tribunal has jurisdiction to make an award of generic or common costs in appropriate cases. What precisely might be the appropriate cases is rather more difficult to determine. It is well-known that immigration litigation may feature groups of large numbers of cases which may be factually similar and which may justify legally identical responses. None of the cases particularly cited to me was of very much help in determining whether a common costs order is appropriate when, as in the present cases, a large number of claimants, not for the most part acting together, bring claims against a single defendant over a period of time, and that defendant, over that period, incurs costs in taking, and then refining, a general line of defence in the light of both the increasing number of cases and the developing jurisprudence as some of them come to Court. In Young v Brown the order sought was in favour of successful claimants with cases more or less identical on their facts, and prepared together, against a single defendant. In Haynes v Department of Business, the claimant had...
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Upper Tribunal (Immigration and asylum chamber), 2015-12-11, [2015] UKUT 684 (IAC) (R on the application of Khan and Others v Secretary of State for the Home Department (common costs) (IJR))
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