Costs News

15 June 2017
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Costs penalty for asylum-seeker who brought twin JRs to secure release from detention

A deputy High Court judge was entitled to refuse an application for costs in the second of two judicial review (JR) proceedings brought in a “twin-track” strategy to have a Ugandan asylum-seeker released from detention, the Court of Appeal has ruled.

In the substantive proceedings, the applicant, who was facing deportation, had brought two JRs. In the first, he sought a stay of his removal from the UK that included an application for bail, and in the second a declaration that his detention had been unlawful for a period and an order for his release. Both were eventually withdrawn by consent after bail was agreed, with the government ordered to pay the applicant’s costs of £45,000 in the first case.

The claims for £30,000 in costs for the second JR were disputed. Deputy Judge Clare Moulder made no order as to costs on the basis that using a “twin-track approach” to secure the applicant’s release from detention was unnecessary.

The second JR was issued after the bail application was made in the first and a hearing been set down, she noted. “While it could be argued that the claimant succeeded in both proceedings, in my view the conduct of the claimant in pursuing the issue of bail in second proceedings and thereby incurring the additional costs of the second proceedings is a relevant factor in determining the issue of costs under the CPR…

“Further, to the extent that this application sought to establish unlawful detention of the claimant, that issue was not tested and there is insufficient material before me to determine the likelihood of success, though I note the poor immigration history of the claimant set out in the defendant's submissions. It is not the case that it is ‘tolerably clear’ that the claimant would have succeeded on that part of his claim.

“This therefore supports my conclusion that in accordance with the principles laid down in [R (M) v Croydon Borough Council [2012] EWCA Civ 595], the appropriate order in relation to this application is no order for costs.”

On appeal, the Court of Appeal, with Lord Justice Hickinbottom giving the judgment, backed the deputy judge’s decision.

He rejected the applicant’s challenge to her saying that the second claim was unnecessary duplication. “I do not take the deputy judge to have meant that the two applications were identical in nature and scope, or that there could not possibly have been – at least, at a theoretical level – a difference in result.

“Rather, in my view, she meant that, as the application for bail was set down for a prompt hearing, even though the issue concerned the liberty of the appellant, it was neither proportionate nor appropriate for the appellant to commence a second claim with the sole intention of obtaining early release on a basis which, if not entirely the same, was very little different…

“The deputy judge was entitled to conclude that, for the appellant to adopt a ‘twin track’ approach to obtaining urgent release from detention – by issuing an application for High Court bail, and a second claim including an application for interim relief for immediate release – was unnecessarily and unreasonably duplicative.

“Therefore, insofar as the appellant succeeded in obtaining the substantive relief sought in the second claim, there was good reason for denying him his costs of the second claim; and making no order for costs.”

 

This post was posted in ACL e-Bulletin, Latest News

Comments

Sue Nash   25/09/2017 at 20:56

It appears that RNB is set for a HC appeal - watch this space! Meanwhile, RIP Solicitors Journal which - sadly - has just ceased publication after 180 years

News Flash   28/09/2017 at 12:18

Another pointless case, why resist a payment on account when your paying the opponents costs in the end anyway? these types of disputes should be a thing of the past!

MB   05/10/2017 at 13:18

Why has the focus returned to the SCCO "going completely digital". Was the electronic bill not extended to all Courts!

Dragon   12/10/2017 at 13:40

Well said Jim. Too often we see clinical negligence claims settle for say £2k only to be followed by a bill for say £50k. Thankfully there are some excellent costs lawyers out there who battle those costs down, but the situation remains outrageous.

Simon Mccarthy   13/10/2017 at 13:56

Dragon - your comment overlooks the fact that it is almost invariably your clients - the Defendants - who cause those scandalous costs by intransigently, and inexplicably, refusing to come to the negotiating table until too late, when the costs have already been racked up; it is their failure to take a realistic view to claims at the outset which necessitates the costs. This faux horror is therefore hard to stomach, especially when one considers the equivalent costs being incurred by government bodies (funded by us tax payers of course) often to the tune of 4-5 times the sums you mention, and the many Defendant costs draftsmen shelling peas for their piece of the pie. Sadly, it is the same old story of 'pay peanuts get monkeys' and, unless and until government wake up and start paying competent people to deal with claims pragmatically, the UK public purse will continue to haemorrhage billions of pounds that we can ill afford. Still, as long as it keeps Defendant costs draftsmen/lawyers in business?....

Northern Costs Monkey   13/10/2017 at 14:31

Just shows how ridiculous the whole budgeting process is. The reason firms generally don’t make applications to revise their budgets is because the bar set for varying them is absurdly high. No one even knows what a “significant development” is. A load of nonsense in my opinion. The situation we have now is that firms just don’t bother revising the budgets because in all likelihood it won’t be accepted. Meaning firms can be stuck with an “approved” budget that is a couple of years out of date, was drafted before the directions were even agreed, and is no longer fit for purpose. What should happen is that budgets should be drafted after the first CMC, and there should be a rule put in place that parties are able to freely revise a previously agreed or approved budget every six months, regardless of significant developments, with the updated budget to be considered at a costs management conference listed for a later date. That after all was the whole point of budgeting, was it not? Pragmatic costs management?

Simon   16/10/2017 at 16:47

I find this whole issue completely unnecessarily. Independent Midwives had commercial insurance suitable for their needs, however to try and save money they chose to try and become self-funding and cancelled their insurance without fully understanding the risks and exposures. I cannot see why it is in the public interest to bring a JR (and why the costs should be capped) when commercial solutions were available, however the issue is that as a group they didn't want to pay the costs of commercial insurance.

Dragon 2   18/10/2017 at 08:07

Great points Simon. Fully agree. Courts are fully aware of how these matters are conducted by those representing defendant. Surely though the money for damages and costs comes out of the medical suppliers' insurers' account, not tax pot nor nursing fund. Maybe that's why there is such a drive to extend the fixed costs regime to clin neg claims. Just a thought......

Mel B   19/10/2017 at 12:05

'Like' Simon McCarthy's comment

Cath Hart   21/10/2017 at 09:32

In reply to Simon's comment (which I thought at first meant this situation could be resolved) my understanding is that professional indemnity insurance for independent midwives has been withdrawn, but even if available the premium would be in the region of 20-30k annually (reference https://www.aims.org.uk/Submissions/nmc.htm) so I would disagree that it was cancelled to "save money" - these premiums exceed many of the midwives salaries so it was simply unworkable without government assistance. When professional indemnity insurance became mandatory under the EU directive in 2014 the independent midwives did appeal to the government for funding but this was rejected due to the low number of women involved so was not thought to represent value for money for the taxpayer. (reference: https://www.gov.uk/government/news/independent-midwives-insurance-options-outlined).

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