R Roszkowski v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd Jones |
| Judgment Date | 01 March 2017 |
| Neutral Citation | [2017] EWCA Civ 412 |
| Docket Number | Case No: C4/2015/1843 (B) |
| Court | Court of Appeal (Civil Division) |
| Date | 01 March 2017 |
[2017] EWCA Civ 412
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(THE HONOURABLE MR JUSTICE CRANSTON)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Lloyd Jones
Case No: C4/2015/1843 (B)
Mr C Jacobs and Ms K Olley (instructed by Ahmed Rahman Carr LLP) appeared on behalf of the Appellant
Ms C Patry (instructed by the Government Legal Department) appeared on behalf of the Respondent
This is an application for a protective costs order in judicial review proceedings in which a challenge is brought to the decision of the Secretary of State for the Home Department refusing, pursuant to paragraph 22(4) of schedule 2 of the Immigration Act 1971, to consent to the release of the applicant, Mr Roszkowski, following a grant of bail by First-tier Tribunal Judge Powell on 16 January 2015. Permission to apply for judicial review was refused on the papers and then refused on the hearing of the renewed application by Cranston J on 3 June 2015. Subsequently two orders made respectively on 27 May 2016 and 13 June 2016 by Laws LJ granted permission to appeal against the decision of Cranston J and permission for the judicial review application and a direction that the application be heard in the Court of Appeal. The judicial review hearing was originally listed to be heard today but it had to be vacated because of a lack of judicial availability, and this application has been listed in its place.
The applicant is a citizen of Poland. He arrived in the United Kingdom in June 2007. On 22 November 2011 he was convicted of destroying or damaging property, for which he was fined and ordered to pay compensation. He was further fined in relation to possession of cannabis and failing to surrender to custody. On 23 January 2013 the applicant was convicted of robbery with intent to do grievous bodily harm, and he was sentenced to four years' imprisonment.
On 9 December 2014 the Secretary of State signed a deportation order against the applicant. The applicant lodged an appeal against that decision on 22 December 2014. Removal directions were served on 15 January 2015 with a removal date set for 26 January. On 16 January the applicant's application for bail was heard at Newport Immigration and Asylum Centre by First-tier Tribunal Judge Powell. The judge granted bail with conditions on the basis that he was not satisfied that there were substantial grounds to believe that the applicant was likely to abscond. He gave detailed reasons in support of his finding. After the judge had read out his decision, the Home Office presenting officer took instructions and returned to court to state that the Secretary of State did not give her consent under paragraph 22(4) of schedule 2 to the Immigration Act 1971 for the applicant to be released on bail. He was later released from custody when he was removed from the United Kingdom on 22 February 2015. He eventually succeeded in his appeal against deportation and he is now free to enter and indeed to reside in the United Kingdom.
Mr Roszkowski's application for permission to apply for judicial review was refused on the papers by Andrews J, and the matter then came before Cranston J at an oral hearing on 3 June 2015. Counsel for Mr Roszkowski advanced a number of grounds, all of which were dismissed by the judge as unarguable. The grounds relied upon included a submission that the Secretary of State had acted unreasonably in the exercise of the discretion conferred on her by paragraph 22(4), which the judge rejected on the basis that the Secretary of State had had regard to other information which was not before the First-tier Tribunal judge and was therefore entitled to take a different view of bail. Counsel for Mr Roszkowski also made a submission based on the decision in R (Evans) v Attorney General [2013] EWCA 1960 (Admin), and Cranston J rejected that submission.
On appeal to this court, Laws LJ gave permission to apply for judicial review on all of the grounds advanced by Mr Roszkowski but placed particular emphasis on the ground based on the decision in Evans, considering that the Court of Appeal should examine the proper reach of paragraph 22(4) in the light of Evans. He said:
"6. In seeking to challenge this decision Mr Jacobs for the applicant draws attention to the decision of this court and of the Supreme Court in Evans [2014] QB 855, [2015] UKSC 21 as to the impact on the scope of the statutory power given to the executive government or the fact that its exercise involves departure from or contradiction of a judicial decision. Cranston J in effect held that paragraph 22(4) gave an unfettered discretion to the Secretary of State as Andrews J had expressly stated in refusing judicial review permission earlier on paper.
7. In my judgment this court should in the circumstances examine the proper reach of paragraph 22(4). For that broad reason I would grant permission to appeal."
By his judicial review application the applicant seeks among other things a declaration that he was unlawfully detained. He also seeks damages for unlawful imprisonment.
On 2 February 2017 the applicant's representatives made an application for a protective costs order. The general principles applicable at common law which a court should apply in an application for a protective costs order are set out in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 at paragraph 74:
"We would therefore restate the governing principles in these terms:
1. A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:
i) The issues raised are of general public importance;
ii) The public interest requires that those issues should be resolved;
iii) The applicant has no private interest in the outcome of the case;
iv) Having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order;
v) If the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.
2. If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.
3. It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above."
Subsequent case law has emphasised that the principles stated there are guidelines rather than hard and fast rules and are not to be read as a statute or in an overly prescriptive way; see Goodson v HM Coroner for Bedfordshire and Luton [2006] CP Rep 6 at paragraph 14 and R (Compton) v Wiltshire Primary Care Trust [2008] EWCA Civ 749 at paragraph 46. In particular, recent case law concerning the applicant's private interest in the case has established that any private interest in the outcome of a case will not necessarily be a bar to the granting of a protective costs order; see R (IS) v Director of Legal Aid Casework [2014] EWCA Civ 886 at paragraph 31, R (Litvinenko) v Secretary of State for the Home Department [2013] EWHC 3135 (Admin) at paragraphs 25 and 26.
More recently a new regime for costs protection in judicial review has been brought into force. This regime is established by the Criminal Justice and Courts Act 2015, sections 88 to 89. However, this new statutory scheme does not apply to the present case. Paragraph 7 of the Criminal Justice and Courts Act 2015 (Commencement No 4 and Transitional Provisions) Order 2016/717 provides that:
"Sections 88 to 90 of the Act do not apply in relation to judicial review proceedings where the claim form was filed in the High Court before 8th August 2016."
The claim form in the present proceedings was filed in the High Court on 20 January 2015. Nevertheless both parties have in their written submissions referred to the provisions of the 2015 Act, and they are provisions which have informed the submissions and which have been very ably made this afternoon.
By this application the applicant seeks a nil liability protective costs order with a reciprocal cap of £35,000. Alternatively he seeks a cap of £5,000 on his liability for costs and a reciprocal cap of £35,000 should the court consider this appropriate. He submits that he meets the criteria for a protective costs order as set out in the Corner House case.
On behalf of the Secretary of State Ms Patry does not take issue with the form of the application but she complains that a number of the relevant factors are simply not addressed or are not addressed in sufficient detail in the evidence lodged on behalf of the applicant. In particular she complains about the lack of any detail in the costs and disbursements which the applicant is likely to incur in the...
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