Tesfay & Ors, R (on the application of) v Secretary of State for the Home Department, Court of Appeal - Civil Division, May 04, 2016, [2016] EWCA Civ 415

Resolution Date:May 04, 2016
Issuing Organization:Civil Division
Actores:Tesfay & Ors, R (on the application of) v Secretary of State for the Home Department

Case Nos: C4/2014/3918, C4/2014/3919, C4/2014/3931, C4/2013/0482

Neutral Citation Number: [2016] EWCA Civ 415




COLLINS J. in Tesfay & Ors v SSHD [2014] EWHC 4048 (Admin).

MITTING J. in R(MB & Ors) v SSHD [2013] EWHC 123 (Admin).

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 04/05/2016

Before :





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Between :

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Stephen Knafler QC, Declan O'Callaghan, and Greg O'Ceallaigh (instructed by Duncan Lewis Solicitors) for the Appellants Tesfay, Rahma, Tayyara, Soulaiman and Salih.

Hugh Southey QC and Philip Nathan (instructed by Duncan Lewis Solicitors) for the Appellants Brahane, Tesfaye, Ararso and Kiflemariam

Alan Payne and Stephen Kosmin (instructed by the Government Legal Department) for the Respondents

Hearing dates : Wednesday 16th & Thursday 17th March 2016

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  1. On 19 February 2014 the Supreme Court delivered its decision in EM (Eritrea) v. Secretary of State for the Home Department [2014] UKSC 12; [2014] AC 1321, reversing the decision of the Court of Appeal and remitting the test cases before it to the Administrative Court. Thereafter the Secretary of State withdrew her certification of the human rights claims and reconsidered those claims in, we are told, over 300 other cases. The appeal and the applications before this court concern the appropriate orders for costs following these withdrawals.

  2. The appeals and applications before this court fall into three groups.

    (1) Semere Tesfay, Tariq Rahma and Abdo Tayyara appeal, by leave of Underhill L.J. against the order of Collins J. dated 3 December 2014 (Tesfay and others v. Secretary of State for the Home Department [2014] EWHC 4048). These proceedings concern the return of the appellants to Italy under Regulation 343/2003 (``the Dublin II Regulation'').

    (2) Applications for costs by Adam Soulaiman and Ali Salih, in relation to which no decision has been made by the court, raise the same or very similar issues to those considered in the judgment of Collins J. These proceedings also concern the return of the applicants to Italy under the Dublin II Regulation. The first two groups are considered together. The individuals in these groups are referred to collectively as ``the Italy applicants''.

    (3) Mesfin Brahane, Yonase Tesfaye, Gadiso Ararso and Teklehaymanot Kiflemariam make applications for costs in their proceedings which concern the return of the applicants to Malta under the Dublin II Regulation. The individuals in this third group are referred to collectively as ``the Malta applicants''.

  3. The Italy applicants issued proceedings for permission to apply for judicial review of the decision of the respondent certifying as clearly unfounded their human rights claims in accordance with the presumption in section 92(4)(a), Nationality, Immigration and Asylum Act 2002 and paragraph 5(4) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 and ordering their removal to Italy. Although permission to apply for judicial review was granted in none of these cases, the proceedings were variously stayed at different times and for different periods pending the decision in EM (Eritrea). Following the decision of the Supreme Court the decisions certifying the human rights claims were withdrawn by consent. In the cases of Semere Tesfay, Rahma and Tayyara, the issue of costs was left to be determined by the Administrative Court. The order of Collins J. is now appealed to this court. On 2 February 2015 Underhill LJ ordered that the costs applications of Soulaiman and Salih be heard with those appeals.

  4. The Malta applicants issued proceedings for permission to apply for judicial review of the certification of their human rights claims and of the orders for their removal. Mitting J. dismissed the applications and refused leave to appeal. All applied to the Court of Appeal for permission to appeal. Permission was refused on paper. At a renewed hearing Aikens L.J. referred the permission application to the full court with the substantive hearing to follow if permission was granted. Before that hearing could take place the respondent withdrew the human rights certifications. On 2 February 2015 Underhill L.J. ordered that the resulting costs applications be heard at the same time as the appeals and applications of the Italy applicants.

    The general approach to costs

  5. CPR 44.2(2) provides:

    ``If the court decides to make an order about costs

    (a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

    (b) the court may make a different order.''

    CPR r 44.2 (4) provides:

    ``In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including

    (a) the conduct of all the parties;

    (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

    (c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply.''

    By virtue of CPR r 44.4(3) the conduct of the parties includes conduct before, as well as during, the proceedings, and the efforts made, if any, before and during the proceedings in order to try to resolve the dispute.

  6. In R (on the application of Boxall) v Waltham Forest LBC (2001) 4 C.C.L. Rep. 258 Scott Baker J. formulated guidelines concerning the award of costs where judicial review proceedings settle. There claimants judicially reviewed the local authority's failure to assess their accommodation, community care and welfare needs and its decision not to provide suitable accommodation for them. The proceedings were discontinued after an offer of new accommodation had been made. Having considered the authorities the judge formulated the following guidelines (at [22]):

    (i) The court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.

    (ii) It will ordinarily be irrelevant that the Claimant is legally aided;

    (iii) The overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;

    (iv) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.

    (v) In the absence of a good reason to make any other order the fall back is to make no order as to costs.

    (vi) The court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.

    Central to these guidelines was the question whether the claimant would have succeeded at trial. In that case the judge held that in view of the local authority's failure to carry out a proper and timeous assessment of the claimant's needs, the claimant was entitled to his costs.

  7. The Boxall principles were considered in the final report of the Jackson Review of Civil Litigation Costs at [4.12]-[4.13] which stated that although the Boxall approach made ``eminently good sense'' at the time that case was decided, it was in need of modification in light of the pre-action protocol for judicial review claims. It recommended that if the defendant settles a judicial review claim after issue by conceding any material part of the relief sought and the claimant has complied with the protocol, the normal order should be that the defendant pays the claimant's costs.

  8. R (on the application of Bahta) v Secretary of State for the Home Department [2011] EWCA Civ 895 concerned appeals against costs decisions in immigration cases following consent orders. The Secretary of State had delayed in responding pending a Supreme Court decision in a similar case. Eventually the appellants had been granted what they sought for what was said by the Secretary of State to be "purely pragmatic reasons". In his judgment, with which Sullivan LJ and Hedley J agreed, Pill LJ said that the decision as to costs must be made by reference to the circumstances at the date of the assessment. He considered that, notwithstanding the heavy workload of UKBA and the constraints upon its resources, there could be no special rule for government departments in this respect. He held that the fact that orders for costs will add to the financial burden of the agency, cannot be a reason for depriving other parties, including publicly funded parties, of costs to which they are entitled. He went on to stress at [61] that the fact that one of the parties is publicly funded is not a good reason to decline to make an order for costs. He concluded at [63] - [65]:

    ``63 I have serious misgivings about UKBA's claim to avoid costs when a claim is settled for ``purely pragmatic reasons''. My reservations are increased by the claim, on the facts of the present cases, that the right to work was granted for pragmatic reasons. I am unimpressed by suggestions made in the present cases that permission to work was granted for reasons other than that the law required permission to work to be granted. There may be cases in which relief may be granted for reasons entirely unconnected with the claim made. Given the Secretary of State's duty to act fairly as between applicants, and the duty to apply rules and discretions fairly, a clearly expressed reason would be...

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