The Home Office has made no application to recover its costs from claimants whose application for judicial review was rejected, after the High Court said the government’s procedural failures would make an order unlikely.
Helen Mountfield QC, sitting as a deputy judge of the High Court, was also critical of the costs charged to the claimants and of the quality of their pleadings, which, had the claim succeeded, would likely have not been recoverable.
R (on the application of Bhatt) v The Secretary of State for the Home Department [2015] EWHC 1724 (Admin) dealt with what the judge described as a “very unfortunate” case in which the claimants, Indian nationals, made applications to extend visas to be in the UK through an immigration adviser who turned out to be a fraudster. They were then “ill-served by the Home Office, which mishandled their case”, including subjecting them to a period of seven days’ unlawful detention. The Home Office apologised for its shortcomings in the case to the claimants and before the court.
During the proceedings, the Home Office was 35 days late in filing and serving detailed grounds of resistance, although Judge Mountfield decided in the circumstances to grant relief from sanctions, even though the fact it was caused by an oversight was “not a very convincing excuse”.
She also criticised the claimants’ skeleton argument as “diffuse and difficult” and concluded that, despite the “defects” in the defendant’s conduct and her “great sympathy for the claimants who have been let down by a great many people during the course of this saga”, there was no proper basis upon which the claim for judicial review and damages could succeed.
Highlighting costs ahead of any application for them, Judge Mountfield said: “Notwithstanding the usual rule that the winner obtains its costs from the loser, in view of the circumstances of this case – the failure to comply with the pre-action protocol, and the delays in lodging both acknowledgement of service and detailed grounds of defence – it may take some compelling factor to persuade me to make any order that the claimants be liable for the defendant’s costs.”
In a postscript to the judgment, she recorded that “there is, in the circumstances, no application for costs from the defendant”.
Though she did not need to address the schedule of costs lodged by the claimants, in the main ruling Judge Mountfield said: “The claimants are privately paying clients and I regret that in fairness to them, I ought to say that I regard the sum which would have been claimed for costs in this case – which presumably is the sum they are to be charged on a solicitor-client basis – as grossly excessive.
“It is four or five times more than I commonly see in cases of an equivalent nature which have been well prepared by excellent and efficient advocates. As pointed out in the defendant’s skeleton argument, the claimants’ lawyer has not begun to plead the case properly or to comply with the practice directions as to what should be included in a claim.
“Moreover, even if the claimants had succeeded, I would have felt unable to award the costs of the skeleton argument against the defendant, for the reasons given by Lord Justice Jackson in Inplayer Ltd v Thorogood [2014] EWCA Civ 1511 at [51]-[57]. In that case, refusing to award the costs of a skeleton drafted by the same advocate because it failed to fulfil the intended clarificatory purpose of a skeleton argument, Jackson LJ described the skeleton as constituting ‘[many] pages of rambling prolixity through which the reader must struggle to track down the relevant facts, issues and arguments’. I very much regret to say that the skeleton argument in this case suffered from the same defect.
“Had this been a case in which the defendant would have been ordered to pay the claimant’s costs in principle, it would have been an uphill struggle for the claimant’s advocate to persuade me to award a fraction of the sum claimed (though I would have considered submissions from both parties as to quantum before reaching a concluded view).
“Whether or not the costs can be enforced against the claimants may be a matter for the Legal Ombudsman; the claim having failed, it is not a matter for me.”
In a postscript, Judge Mountfield related that when she sent a draft of it to the legal representatives for any corrections, the claimant’s advocate said that the reference to the Legal Ombudsman (LeO) “appears to make no sense in this specific matter. LeO may be relevant to a bill in non-litigation matters”. He suggested that a contested bill would be assessed by the Senior [Court] Costs Office.
“I have checked this with the Legal Ombudsman’s office, and they have confirmed that, if a client wishes to challenge a bill from a regulated lawyer in connection with the conduct of litigation as being manifestly excessive, the ombudsman has jurisdiction to consider it. My reference to the ombudsman is therefore correct.”