R Poomah and Others v SSHD
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden |
| Judgment Date | 10 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1339 |
| Date | 10 November 2015 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2014/2005 |
[2015] EWCA Civ 1339
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(DESIGNATED IMMIGRATION JUDGE COKER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Case No: C2/2014/2005
Miss Galina Ward (instructed by Arc Solicitors) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
This is a renewed application to appeal against the refusal of 30 May 2014 by Upper Tribunal Judge Coker to award the costs of the judicial review application which was withdrawn because the Secretary of State made the decision which the judicial review application was designed to require the Secretary of State to take within a reasonable time.
At the same time but not before me, the Judge rejected the respondent's application for costs against the appellants.
Costs are of course within the discretion of the court, but the discretion is a judicial discretion and Ms Ward who has presented the argument before me today efficiently and expertly relied particularly on R (on the application of Bahta) v The Secretary of State for the Home Department [2011] EWCA Civ 895. She particularly relies on the fact that this court there rejected the argument made by the Secretary of State (among a host of other arguments) that costs should not be awarded against the Secretary of State where an application for judicial review was withdrawn because, so it was said, the grant of indefinite leave to remain was wholly unrelated to the court of the judicial review proceedings.
Pill LJ at paragraph 59 of his judgment held:
"What is not acceptable is a state of mind in which the issues are not addressed by a defendant once an adequately formulated letter of claim is received by the defendant. In the absence of an adequate response, a claimant is entitled to proceed to institute proceedings. If the claimant then obtains the relief sought, or substantially similar relief, the claimant can expect to be awarded costs against the defendant."
I appreciate that the award of costs is important for a number of reasons. Those reasons include the fact that of course the claimant's legal advisers may be dependent on an order of the court and, in addition, the order for costs would concentrate the minds wonderfully of decision makers and thus, hopefully, reduce the volume and length of litigation and so save court resources.
This appeal is all about the refusal to make an award of costs. The background is clearly set out in the skeleton argument in support of the grounds of appeal:
"2. The grounds of appeal are that Judge Coker erred in the judgment of 30 May 2013 in:
a. Failing to identify that the Appellants' case fell within category (i) identified in paragraph 61 of M v Croydon [2012] EWCA Civ 595 and therefore that the Appellants were entitled to their costs in the absence of a good reason to the contrary;
b. Relying on the delay by the Appellants making their applications for leave to remain as a reason for not awarding them the costs of their subsequent application for judicial review;
c. Holding that the Respondent was not obliged to comply with the pre-action protocol, and relying on this as a reason for not awarding the Appellants their costs;
d. Treating her view of the substantive merits of the claim as relevant to the application for costs in a category (i) case; and
e. Treating as relevant to the application for costs the fact that the relief obtained by the Appellants was not, apparently, a direct consequence of their application for judicial review.
Background
3. The application for judicial review was issued on 30 September 2013. It sought an order that the Defendant determine the Claimants' application for leave to remain in the United Kingdom, which had been made on 23 October 2012 and had therefore been outstanding for almost a year.
4. By a pre-action protocol letter dated 13 September 2013, the Claimants had requested that the Defendant confirm, within 14 days, that their applications would be determined within 3 months. The Defendant did not respond to that pre-action protocol letter.
5. On 19 December 2013 the Defendant issued notices of decision to each of the Claimants refusing to grant leave to remain. On 27 January...
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