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

This is an appeal about costs. The Secretary of State for the Home Department challenges an order made at the end of proceedings in the Administrative Court, by which she (and I shall use the female pronoun as applicable at the time) was ordered to pay 75 per cent of the costs of WS, an applicant for judicial review. She claims that the judge should instead have required WS to pay 80 per cent of her costs. Permission to appeal was granted by Davis LJ, who noted that this court is always very slow to interfere with a discretionary award of costs made by a trial judge but that in this case it was arguable that something may have gone very wrong. He urged the parties to come to a sensible and pragmatic compromise.

The background is that WS came to the United Kingdom in 2001 on a visitor's visa. He then married a British citizen and was granted indefinite leave to remain in 2003. That marriage did not last, and he then resumed a relationship with and married a woman by whom he already had two children, and another child was born in 2004. They also have indefinite leave to remain. In March 2014 WS was convicted of wounding his wife. He was sentenced to 24 months' imprisonment suspended for two years. A three-year restraining order was made in favour of the wife and children, which he quickly breached. For that he was sentenced to 20 months' imprisonment, including activation of part of the suspended sentence. In December 2014, while he was in prison, a deportation order was made. He challenged this on Article 8 grounds by reference to the presence in the United Kingdom of his wife and children. In March 2015 WS was released from prison and detained under immigration powers. He brought a series of proceedings and in September 2016 for the first time claimed asylum. In November of that year this was refused and certified as clearly unfounded.

It is not necessary to recount all the various applications made by WS. They were all legally unsuccessful but had the practical effect of preventing his removal. For present purposes it is sufficient to note that he was detained between March 2015 and January 2016 and, relevantly, between 19 August 2016 and the 21 February 2018. The particular proceedings that this appeal concerned began with a claim issued on 9 August 2017, by which WS challenged the lawfulness of his detention. In October

The Judicial Review proceedings were heard by Mr Michael Kent QC sitting as a deputy High Court judge on 27 February 2018, with written arguments on the certification being submitted subsequently. At the start of the hearing, in fact, in court, the Secretary of State conceded that the period of detention from 24 January to 21 February 2018 had been unlawful and that substantial as opposed to nominal damages were appropriate. She disputed that the earlier period of detention or the certification of the asylum claim had been unlawful. In a substantial judgment delivered on 13 April 2018, he judge dismissed WS's claim in every respect but for the last four weeks of detention, which the Secretary of State had lately conceded.

The certification argument was protracted. To some extent the judge accepted arguments made on behalf of WS, but in the end his arguments on that issue failed also for the reasons given. The judge then transferred the assessment of damages to the county court. He heard submissions on costs. For WS, Mr Bedford, who appears before us today, asked for an order for full costs, as anything else would eat into any damages awarded. For the Secretary of State, Ms Carse, who also now appears, sought an order for WS to pay 80 per cent of her costs, noting that if the claim had been heard before January 2018 it would have failed entirely. The judge referred to the general rule that the unsuccessful party will be ordered to pay the costs of the successful party but that the court may make a different order (see Civil Procedure Rule 44.2(2), and he noted that the rule required consideration of whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue. During the course of his ruling, he said this:

He therefore determined that there should be a reduction in WS's costs recovery and consider various means of achieving this, including by identifying issues or specifying dates, before reaching his conclusion in these terms:

We have been referred to the full provisions of the relevant Civil Procedure Rule and to a number of authorities on its application. From these I need only extract the observations of Lord Neuberger MR in R (M) v Croydon London Borough Council [2012] 1 WLR 2607. At paragraph 62 he considered a number of permutations, one of which was a case in the Administrative Court where a party has succeeded only in part following a contested hearing. As to that, he said this:

As to the tests for a costs appeal, Lord Neuberger said this at paragraph 44 when identifying certain general principles:

On this appeal, Ms Carse submits that even though the Secretary of State's concession was not made until trial, the judge's approach was wrong and unjust in the following respects. Firstly, although he decided that there were significant issues on which the Secretary of State had won, he wrongly concluded that this did not entitle her to recover her costs on those issues but instead ordered a limited deduction from the claimant's costs. Secondly, the judge ignored relevant factors, namely (1) that the proceedings were prolonged by about three months because of the redrafting of the grounds (had it been otherwise, they would probably have finished before the period of unlawful detention began); (2) the costs were increased by the number of unsuccessful applications made by WS, including significant costs arising from three unreasonable

In response, Mr Bedford argues that WS was the successful party. He had established that he was unlawfully detained, which was a serious matter, and he had succeeded in obtaining a remedy in the proceedings. It was WS who had succeeded, if only in part. The judge's decision was reasonably open to him. He took account of all the relevant matters including points now argued by the Secretary of State. He noted that there had been no offer to settle before the day of trial. He was, as stated in M v Croydon above, best placed to determine how reasonable or important the pursuit of the unsuccessful claim had been compared with the successful claim and by how much the costs were increased thereby. The decision was not perverse. The appeal is no more than a disagreement with the decision.

Having considered the competing submissions, I am clear that the judge's decision on costs cannot 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. 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. I therefore consider that the judge departed from correct principle to such a degree that we must intervene and make a fresh order.

As to what that might be, I begin by echoing the observations of Davis LJ when granting permission to appeal that the Secretary of State's claim for 80 per cent of her costs is extremely ambitious. This was a case in which, by whatever route, she was found to have unlawfully detained someone for four weeks. As Mr Bedford says, it was by pursuing his claim to the bitter end that his client achieved a remedy as a result of proceedings that he had brought. But for those, it might be said that his period of unlawful detention could well have been longer. 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. To that extent, I would allow the appeal.

I agree.