MK (Afghanistan), R (On the Application Of) v Secretary of State for the Home Department

LORD JUSTICE UNDERHILL: I propose to grant permission to appeal in this case. To some extent I surprise myself in doing so because challenging a judge's discretion on costs in a case like this is and ought to be difficult. Also, the sums involved are unlikely to be very large in absolute terms, although I do not doubt their importance to the Applicant's advisers. (The latter consideration, though, has to be tempered by the point acknowledged in the authorities that the difference between the two levels of costs recovery as between privately funded work and an inter partes costs order is very substantial: it is in the public interest that solicitors doing this work should be rewarded on an inter partes basis where the facts properly justify it.)

I will state my reasons very shortly without setting out the background. The judge's reasons for refusing to award the Applicant his costs are shortly expressed. On one possible reading, he seems to have regarded it as decisive that the Applicant's detention and the initial decision to remove him were lawful. Put that way, that seems to be, as Mr Nathan submits, irrelevant. But I think, on a fairer reading, that his essential reason was that no cause of action arose until the Applicant's fresh representations had been served on the Secretary of State and she had had at least some realistic opportunity to consider them. That did not occur until very shortly before the issue of proceedings. In other words, this was a very late application.

In principle, that would be a perfectly good reason for not awarding costs, notwithstanding the starting point as identified in cases M v Croydon. However, in the Applicant's costs submissions his solicitors had addressed that point with some care, cross-referring to the statement of case lodged with the judicial review claim form. They explained with particularity the difficulties facing them following their first instruction, which are familiar difficulties having regard to the fact that the Applicant had been detained without notice and was himself an asylum-seeker with little knowledge of the system. They made and emphasised the fact that although removal directions were set and notified to the Applicant on Tuesday, 6 November, no notice was given to them at any time although the Secretary of State had been notified of their involvement. They only learnt of it, indirectly from the client, after hours on Friday, 9 November.

The judge in his reasoning does not refer to that explanation at all, although it was not challenged in any reply or submissions from the Treasury Solicitor. I am all for the reasons on costs decisions being short, but in my view it is arguable that the judge's failure to address what was in practice the central issue, namely whether the delay was excusable and was at least in part the Secretary of State's fault, rendered his decision flawed in law.

I have considered anxiously whether it could be said that any such failure was immaterial because the Applicant's explanation was obviously inadequate, so that the result would have been the same in any event even if the judge had given proper reasons. But I am not convinced that that is so.

That is the basis on which I grant permission.

My initial view is that the appeal will be heard by a court of three, who may include a High Court Judge, though I will investigate whether this is the sort of case that can more economically be heard by two Lord Justices. One of them should have immigration expertise. The estimate will be one hour.

Although I cannot formally bind the full court, the parties should prepare on the basis that if the appeal is allowed on the basis that the judge's decision was unreasoned, or insufficiently reasoned, the court will make a costs decision itself. Mr Nathan will, I am sure, understand that if it does so it may or may not come to the same conclusion as the judge. If it comes to the same conclusion as the judge, at least he and those behind him will have had what they are entitled to, namely full reasons.

I end by saying this. The sums involved are comparatively small, though as I say I do not doubt their importance to those advising and representing the Applicant. I would urge both parties to consider whether, rather than expending further costs in this court with an uncertain outcome, the sensible course is not to try to reach a compromise. The starting point would be for the Applicant's solicitors to notify the Treasury Solicitor of the amounts that they are claiming so that a sensible view can be formed on the Secretary of State's side about what is at stake and what might be a fair compromise.