Costs News

01 August 2019
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Judge was wrong to award asylum seeker 75% of costs of judicial review

The High Court was wrong to order the government to pay 75% of the costs of an applicant for judicial review in an asylum case as he won only a small, if significant, part of his case, the Court of Appeal has ruled.

In R (on the application of Sanneh) v Secretary of State for the Home Department [2019] EWCA Civ 1319, the claimant, WS, came to the UK in 2001 on a visitor's visa and was granted indefinite leave to remain. After a conviction, he faced deportation in 2014 and later claimed asylum. He made various applications, all of which were unsuccessful, but the court noted that they had the effect of preventing his removal.

 

The most recent application challenged the lawfulness of his detention by the immigration authorities, at the start of which the Secretary of State admitted that WS had been detained unlawfully for four weeks before his release with an electronic tag. But all the other, significant, aspects of the claim failed.

Mr Michael Kent QC, sitting as a deputy High Court judge, transferred the assessment of damages to the county court. On costs, he ruled: “Where a claimant succeeds in showing that he has been unlawfully detained, which is a serious matter, the defendant should only get a reduction of the costs which he has to pay in respect of that finding if there are unusual circumstances. There are unusual circumstances. I think in the circumstances overall a 25% reduction is appropriate." 

On appeal, the Secretary of State argued that instead she should have 80% of her costs.

Lord Justice Peter Jackson, giving the ruling of the Court of Appeal, said the judge's decision on costs could not stand. “The reality, noted by the judge in his ruling but not reflected in his determination, is that whilst WS was a successful party in the proceedings, he was not the only successful party.

“While any finding of unlawful detention is a serious matter, WS only succeeded in one aspect of his much larger claim. As against that, the Secretary of State succeeded in relation to the previous 20 months of detention and ultimately on the issue of certification [of the asylum claim]. The duration of the proceedings during which costs were accumulating largely coincided with claims that were unsuccessful, if not indeed unreasonable.

“Further, even if the judge was right to characterise WS as the successful party, the extent of deduction from his costs did not to any sufficient degree reflect the contours of the case as established by his findings and conclusions.”

Making a fresh order, Peter Jackson LJ described the government’s claim for 80% of her costs as “ambitious”, given the finding of unlawful detention. “As against that, WS's original claim pursued to trial was thoroughly overblown. There are of course a range of permissible approaches to how the balance should be struck between these competing factors.

“Taking a broad view of the justice of the case, I consider that the correct order is one that each side pays its own costs of the proceedings below.”

Ms A Carse (instructed by the Government Legal Department) for the appellant with Mr B Beckford (instructed by Dylan Conrad Kreolle) for the respondent.

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