Medical Justice, R (on the application of) v Secretary of State for the Home Department

The applications before me arise out of a claim for judicial review in which the claimant challenges part of the Secretary of State's policy on the removal of persons from the United Kingdom. What is at issue in the claim is contained in Section 3 of the document entitled "Judicial Review and Injunctions". That is part of the UK Border Agency's Enforcement Instructions. The policy in Section 3 is sometimes referred to as the policy of same day removals, although that is not technically correct, or as the exceptions policy. In this judgment, I shall refer to it as the Section 3 policy.

Section 2 of the document "Judicial Review and Injunctions" provides that, in general, 72 hours and at least two working days' notice ought to be given when a person is to be removed from the United Kingdom, but Section 3 goes on to identify circumstances in which less than 72 hours may elapse before the notification of removal directions and removal itself. Section 3 refers to five specific categories: first, medically documented cases where removal directions will create a risk of suicide or self-harm, and that risk is medically documented; secondly children, where it is believed to be in the best interests of unaccompanied children because of the risk of absconding (although liaison ought to occur with children's services and the receiving country); thirdly, where it is in the best interests of another person, for example where there is a threat or credible risk that a parent will harm his or her child; fourthly, disruption, where giving advanced notice to an individual to be removed might lead to disruptive behaviour on his behalf; and fifthly where there is consent from the person to be removed.

Section 3 also contains a number of safeguards so that, for example, the UK Border Agency officials must let legal representatives know by fax as soon as the removee is told, and where possible bringing the matter to the attention of the legal representatives. Other safeguards include that, if asked, the officials must allow the individual to speak to their legal representatives, and where possible the official must schedule the removal for a working day during office hours.

The claimant's case is that the Section 3 policy is unlawful and that in no circumstances should the period between notification of removal directions and removal from the United Kingdom be less than 72 hours. Their claim was filed with the Administrative Court office on 6 April 2010. The claim was considered on the papers by His Honour Judge Thornton QC sitting as a Deputy High Court Judge. On 13 April 2010 he granted permission to apply for judicial review, albeit that he did not have an acknowledgement of service or summary grounds from the Secretary of State. He refused interim relief but he imposed a protective costs order, under which the claimant would be liable to a maximum appeal limit for costs in the sum of £5,000. That order was made again without the Secretary of State having the opportunity to make submissions on the application. The Deputy Judge expedited the claim and ordered that the Secretary of State serve detailed grounds and evidence by 6 May.

The application for interim relief was renewed on the papers before Ouseley J on 30 April. He refused to grant interim relief and decided that the matter should be considered at an oral hearing. He also stated that the Secretary of State's position vis a vis the protective costs order should be considered at that hearing. He extended time for the Secretary of State to lodge its detailed grounds until 14 May. On 17 May the Secretary of State lodged those detailed grounds of defence, along with the witness statement of Clive Peckover. Mr Peckover is the deputy director in the Central Policy Unit of the UK Border Agency, an executive arm of the Home Office.

The principles governing the grant of interim relief in judicial review proceedings are those contained in the well known decision of American Cyanamid Company v Ethicon Limited [1975] AC 396, but modified as appropriate to public law cases. First, the claimant must demonstrate that there is a real prospect of succeeding at trial. This seems to equate with something more than a fanciful prospect of success. In Smith v Inner London Education Authority [1978] 1 All AER 411, the claimants had obtained an interim injunction in relation to the closure of a grammar school. On appeal, Lord Denning acknowledged that American Cyanamid could not automatically fit with public law cases, but held that, without going into details, a public authority should not be restrained from exercising its statutory power or doing its duty to the public unless the claimant could show a real prospect of succeeding at the trial (P418, e to f). Browne LJ said this (at 419, b to c):

In Sierbein v Westminster City Council [1987] 86 LGR 43, the Court of Appeal agreed with the approach in Smith v Inner London Education Authority, although underlined the importance of the public interest in an application for an interim injunction against a public authority: see Dillon LJ at 440.

In this case the claimant's grounds are detailed, as is their evidence. The Deputy Judge gave permission and commented on the seriousness of the issues. There have also been concerns expressed about the operation of the Section 3 policy by High Court judges. Collins J in R (on the application of T) v Secretary of State for the Home Department [2010] EWHC 435 Admin held one aspect to be unlawful. Openshaw J, as duty judge in late April of this year, commented in a case involving one Oliver Nyam, that the Secretary of State's action of arresting someone at 11.30 pm for removal at 6.30 am the following morning was "completely unconscionable".

Before me, Mr Swift QC submitted that there was no real prospect of success for this claimant at trial. On its face, the Section 3 policy does not purport to deny access to a court. It has only limited application, and those exceptional cases are for good policy reasons. There are the safeguards contained within the policy, which serve to ensure that it is consistent with the right of access to a court. Situations such as that facing Openshaw J in Nyam demonstrate that access to justice is still available, as in that case, where his Lordship was contacted as duty judge and in the event granted interim relief.

In reply, Ms Rose QC took me to some of the evidence the claimant has assembled. For example, there is a statement by Joanna Swaney, a supervising solicitor at Refugee and Migrant Justice, who has considerable experience in this area. Ms Swaney conceded, as Mr Swift had submitted, that where persons are being removed it is usually the case that they have been through the system and have exhausted their appeal rights. Her experience, however, and that of other solicitors in her team, is that they have regularly represented persons whose cases at an earlier point were inadequately prepared, or where further evidence had come to light undermining the findings made against them. Ms Rose took me to several decisions, such as R (on the application of N) v Secretary of State for the Home Department [2009] EWHC 873 Admin, where the claimant had been given less than 12 hours notice of removal, and where, subsequent to removal, had been able to raise an issue which ultimately led to his establishing his case. Ms Rose QC also highlighted an impact assessment of the Section 3 policy, prepared by the Secretary of State, where the impossibility of lodging a judicial review application in time was candidly acknowledged as a possible adverse impact of the policy.

It would be wrong to express any concluded view about the merits of the case, notwithstanding that the Secretary of State's detailed grounds throw a different light on the matter now that they are available. What can be said, in my judgment, is that the claim does have a realistic prospect of success, given the threshold which that test establishes as defined in the authorities.

The more important issue in considering interim relief in this issue is where the balance of convenience lies. In judicial review, this consideration varies from its application in private law, because generally speaking damages will not be payable in the event of an unlawful administrative act, nor will a public authority suffer financial loss from being prevented from implementing its policy. The public interest is strong in permitting a public authority to continue to apply its policy when ex hypothesi it is acting in the public interest. That wider public interest cannot be measured simply in terms of the financial or individual consequences to the parties, a point made by Browne LJ in his judgment in Smith v Inner London Education Authority at page 422 h.

The weight to be attached to that wider public interest turns in part on the juridical basis of the policy. As Lord Goff put it in R v Secretary of State for Transport ex parte Factortame [1991] 1 AC 603, at 674 C to D:

Before me, with his characteristic cogency, Mr Swift QC submitted that the balance of convenience was such that the application for interim relief should be dismissed. He canvassed the nature of the Section 3 policy; it was an option of last resort, which was obvious from the way it was framed. The safeguards were such that access to justice was maintained. By the time notice of removal directions were served, the individual's substantive claim to remain or enter into the United Kingdom will have been fully considered, and the individual would already have been informed of the possibilities to seek legal advice at each stage of the process. The upshot, if an interim injunction were granted, would be that the Secretary of State would be unable to rely on her Section 3 policy, even though persons who would not be removed as a result of that relief would have no legal right to remain in the United Kingdom. It would not be in the public interest, he contended, to prevent the Secretary of State from exercising the powers conferred on her by Parliament to maintain immigration control and to operate an effective enforcement policy so as to remove from the United Kingdom those who have no right to be in this country.

In my view, there are three factors in particular which weigh in the consideration of interim relief in this case. The first is the possibility that someone may suffer loss in the absence of interim relief by being deprived of the opportunity of making a case that his or her removal is not legally justified. The second is that the impact of interim relief on the implementation of the Secretary of State's policy is likely to be minimal. The matter will be heard within weeks. Precise figures are not available on how many people have fallen within the Section 3 policy. That that information is not yet before the court cannot be in my view a subject of criticism. Institutions, including this court, do not necessarily keep statistical information in a form which at any particular point becomes relevant. However, the provisional figures indicate that the policy has only been invoked on 71 occasions since it was introduced more than three years ago (as compared with the approximately 210,000 removal directions during that period.

The third consideration is that the Section 3 policy is precisely that; it is a policy adopted by the Secretary of State in the exercise of her statutory functions. It is not contained in a statutory instrument, nor has it been laid before Parliament, as have the Immigration Rules. More importantly, it seems from letters from the Law Society and the Immigration Law Practitioners' Association that the Section 3 policy was not subject to satisfactory consultation before it was promulgated. In the light of those considerations, it seems to me that the appropriate balance of convenience in this case lies in favour of granting interim relief.

What is in effect a second application is that of the Secretary of State to vary the protective costs order, so that there is a reciprocal cap of £5,000, or possibly £15,000, in relation to costs payable by the Secretary of State should the claimant be successful. Mr Swift QC underlined the point that when the Deputy Judge made the protective costs order he did not give the Secretary of State an opportunity to make submissions as to whether it should be made or as to its terms. The claimant's first line is to resist any reciprocal cap on the basis, amongst other things, that it would seriously impede the claimant's access to justice and would not meet the interests of justice in this case. On behalf of the claimant, Ms Rose QC also contended that it was too late for the Secretary of State to make such an application when she stood by silently since at least 4 March in the knowledge that costs were being incurred which were bound to be in excess of the £5,000 under a conditional fee agreement.

In R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600, the Court of Appeal indicated that where a protective costs order is granted, the appropriate reciprocal order is one which entitles the claimant to receive its solicitors' fees and the fees of a single advocate of junior counsel status that are "no more than modest". At paragraph 76, the court set out the following guidance:

That guidance, as Sir Anthony Clarke MR pointed out in R (on the application of Buglife, the Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corporation [2008] EWCA Civ 1209, is to be applied flexibly. Sir Anthony Clarke MR approved a passage of Smith LJ in R (on the application of Compton) v Wiltshire Primary Care NHS Trust [2008] EWCA Civ 749, where her Ladyship indicated that a "stronger" protective costs order should be made in cases where the issues are of first rank public importance, and where there are compelling public interest reasons for them to be resolved: paragraph 20, quoting paragraph 87 in Smith LJ's judgment.

In Buglife, Sir Anthony Clarke MR went on to recognise that there was no absolute rule limiting the claimant's recoverable costs to those of junior counsel. He commented that the court could imagine cases in which it would be unjust to do so, but that costs should in general be reasonably modest: paragraph 25. He continued that there should be no assumption, whether explicit or implicit, that it was appropriate where the claimant's liability for costs was capped that the defendant's liability for costs should be capped in the same amount. The amount of any cap on the defendant's liability for the claimant's costs would depend upon all the circumstances of the case: paragraph 26. In Buglife, Sir Anthony Clarke MR also considered the approach to be adopted to any success fee which would be payable to the claimant should it be successful. He said that the agreed success fee was relevant to the likely amount of the liability of the defendant to the claimant if the claimant won. It was therefore relevant to the amount of any cap on that liability and, in the court's opinion, it should know the true position when deciding what the cap should be; paragraph 27.

In R (on the application of Corner House Research) v Director of the Serious Fraud Office, CO/1567/2007, 9 November 2007, Moses LJ said that when considering the appropriate level of any cap on the claimant's recoverable costs, courts should take into account the importance in the field of public interest litigation that solicitors should be able to continue to operate so as to provide skilled public legal services to those concerned in public interest cases, using conditional fee agreements. To make an order that did not preserve the importance to them of conditional fee agreement funding would be wrong, for it was inevitable that they would lose a percentage of their cases for which they would not recover any costs, and no firm could continue to operate bearing in mind that risk.

The background to the protective costs order in this case was that the Public Law Project, the solicitors for the claimant, sent a letter before claim, in accordance with the pre-action protocol, on 4 March 2010. In that letter, they invited the Secretary of State to agree not to seek costs against the claimant, and offered to forego any success fee if that were agreed. On 19 March 2010, the Secretary of State responded in detail to the letter before claim, but was silent as to costs. In a further letter on 25 March 2010, the Public Law Project noted the Secretary of State's failure to respond to the invitation to agree the costs position and informed her that it would be seeking a protective costs order, and that the claimant's counsel was acting under a conditional fee agreement. No response was received to that letter.

The Deputy Judge then made his order, and on 15 April the Public Law Project wrote to the Treasury Solicitor, enclosing a copy of the order, including the protective costs aspect, and reminded the Secretary of State that it and its counsel were acting under a conditional fee agreement and did not wish to incur costs of any oral application for interim relief unnecessarily. On 16 April, the Secretary of State wrote responding to the claimant, but again there was no mention of costs. On 29 April, the claimant reiterated that it was prepared to consider reasonable proposals from the Secretary of State regarding costs, but had received no response to that invitation. There was no mention of the protective costs order in the detailed grounds, nor in the evidence. It was not until this hearing that the Secretary of State sought to make submissions on a variation of the protective costs order to incorporate a reciprocal costs protection. At the hearing there was available a witness statement from the acting director of the Public Law Project, Diane Astin, in which she explains the financial constraints under which the Project operates, and states that the Project could not afford to continue to represent the claimant if a reciprocal cap of £5,000 was imposed.

Given the silence of the Secretary of State until the present hearing on the protective costs order, I was initially attracted to the notion of drawing a line in the sand. In particular, Ms Rose QC submitted that the effect of the refusal of the Secretary of State to agree to suspend the policy was to force the claimant's solicitors and counsel to incur significant costs in applying for interim relief, and they did so in circumstances in which they were protected by and relied on the protective costs order made by the Deputy Judge. However, I am persuaded by the submission by Mr Swift QC for the Secretary of State that the Public Law Project are experienced public interest solicitors and should be taken to know the parameters of such orders. I am also convinced that Mr Swift is correct when he refuted Ms Rose's initial submissions that the amount of a success fee should not be disclosed since that was privileged information. In her submission, she had contended that the level of success fee is set in accordance with counsel's advice on the merits, and that being the case it was better practice for a court to award a sum with a notional success fee of up to 100 per cent, the statutory maximum. Ms Rose abandoned that submission at the very close of her reply, and in my view rightly so, given Sir Anthony Clarke's clear statement in Buglife that the court must know the agreed success fee: paragraph 27.

In my view in this case there must be a reciprocal cap on the claimant's recoverable costs, in other words a maximum liability of the Secretary of State should the claimant be successful. That cap must reflect the guidance in the authorities. The liability of the Secretary of State for the claimant's costs must be restricted to a reasonably modest amount, and the protective costs order must not permit anything other than a modest representation for the claimant. It will be recalled that in Corner House the capping order was restricted to solicitors' fees and a fee for a single advocate of junior counsel status, although in Buglife Sir Anthony Clarke said that there was no absolute bar on a claimant having two counsel.

In her submissions, Ms Rose QC contended that this was a case which raised serious issues touching on the right of access to justice, concerned a policy which generated applications for urgent injunctions and for judicial review in individual cases, and in relation to which, by the very nature of the issue, many of those affected by the policy were unable to challenge it before a court. She also underscored the fact that the Secretary of State had chosen to instruct leading and junior counsel, including the First Treasury Counsel, Chancery, Mr Swift QC, which indicated the Secretary of State's view of the significance and complexity of the case.

I am prepared to accept all that, but I am quite clear that the claimant's costs must be restricted. There is no way that counsel undertaking this work can expect anything like their ordinary rates. Anyone claiming to act in the public interest, or undertaking public service, must expect that their services will be charged out at a discount. Mr Swift QC, as First Treasury Counsel, Chancery, Ms Clement as his junior, and the solicitor behind them, are not on commercial rates. Those on the claimant's side cannot expect to be either. The reciprocal cap must take that into account.

However, the reciprocal cap must also take into account the success fee. At the present time success fees are lawfully recoverable. As Moses LJ has pointed out, there is a strong public interest in ensuring that costs orders permit the proper funding of solicitors who take public interest cases and who take the risk of losing. We now know the success fee payable in this case, and that must be factored in. In my view, the reciprocal cap must reflect the claimant's incurred costs to date, involving representation by the Public Law Project and leading and junior counsel, but on a modest basis, and the success fee. The rates payable on the Secretary of State's side may provide a suitable benchmark of modesty. If amounts cannot be agreed then the matter must be remitted to a costs judge to assess figures to accommodate the considerations which I have identified.

MR SWIFT: My Lord, thank you. May I just clarify one point on the terms of the interim relief. As I understand it, the claimant's substantive challenge only concerns paragraphs 3.1 through to and including 3.5 of Section 3, so I am assuming the interim relief does not apply to paragraph 3.1.6, which is the port cases exception, but I seek some clarification on that. My Lord, one other point; does your order also apply to 3.1.5, which is the category --

MR JUSTICE CRANSTON: The consent point?

MR SWIFT: Consent, yes. Sorry, I should say 3.1.5 is part of the challenge to the Secretary of State's policy.

MS KILROY: My Lord, may I just take instructions. (Pause)

MR JUSTICE CRANSTON: No, of course not.

MS KILROY: 3.1.6 is not being challenged as part of this claim. So my understanding is that your order would not cover that part of the policy.

MR JUSTICE CRANSTON: What about the consent side?

MS KILROY: That is being challenged, and I understand argument was addressed to it yesterday.

MR JUSTICE CRANSTON: It was, yes.

MS KILROY: In my submission your order on interim relief must be taken to cover that.

MR JUSTICE CRANSTON: Yes, I think it must. Anything more?

MS KILROY: My Lord, could I just clarify my understanding; the reciprocal costs cap will be assessed for the whole of the proceedings?

MR JUSTICE CRANSTON: Yes.

MS KILROY: Thank you.

MR JUSTICE CRANSTON: If you can't agree, it will have to go to a costs judge.

MS KILROY: Thank you, my Lord.

MR JUSTICE CRANSTON: I don't know if you want to make submissions on when that ought to be?

MR SWIFT: My Lord, it is perhaps best to allow a short time for the respective solicitors to see if a figure can be agreed, and then if not, hopefully it will be referred to a costs judge sooner rather than later. I suspect it is unlikely to get to a costs judge before 14 June. My Lord, am I right in thinking that the costs of the application will be costs in the case?

MS KILROY: My Lord, I was just about to address that issue. My Lord, I would like to apply for our costs of this hearing, not the costs in the case, to be awarded today. That is because, as your Lordship has made clear in the judgment your Lordship has just given, attempts have been made since the letter before claim on 4 March to resolve this matter by way of agreement. The Secretary of State has resisted it at every stage and has resisted it --

MR JUSTICE CRANSTON: Hasn't resisted, but hasn't addressed.

MS KILROY: Hasn't addressed the PCO, my Lord, but has resisted the application for interim relief. She resisted agreeing to suspend the policy, despite being asked to do so regularly at every stage of the proceedings, pre letter before claim and post, post granting permission. The Secretary of State also resisted a determination of this on the papers, arguing that she should be given an opportunity to address this in the detailed grounds and at a hearing. So the costs that have been incurred of this hearing in my submission were unnecessary and at the instigation of the Secretary of State, and in those circumstances it shouldn't be costs in the case.

MR SWIFT: My Lord, first the interim relief. The usual position on interim relief is that if an application for interim relief succeeds, the costs are in the case. If an application for interim relief fails, the defendant gets its costs in any event. That is the usual position. My Lord, the reason for that is obvious; where the application succeeds, all the court has done is identified that the claimant has an arguable case, and concluded that the balance of convenience, as it were the least risky course of action pending resolution of the issues between the parties, is to make an interim order. On that basis, clearly if the claimant fails at trial, it would be correct for the defendant not only to get the costs of the trial, subject of course to any PCO, but also the costs of the application for interim relief, because the conclusion of the judge at trial, having heard all the issues, would have been not that the claimant had an arguable case, but in fact that the claimant's case failed. It would be wrong in principle to allow the claimant's costs of the application for interim relief, simply because it would be to pre-judge the substantive merits of the matter.

My Lord, in relation to the protective costs order, I thought I was being kind by suggesting costs in the case. I actually have strong grounds that I should have my costs of that part of yesterday's hearing. In relation to the protective costs order, the Secretary of State made it clear shortly after the order had been made -- this was the letter of 28 April -- that she intended to apply to have that application -- sorry, that order varied. That was properly understood by Ouseley J, who directed that that should be the case, and that that should come on at the same time as the application for interim relief. In fact, the claimant throughout has resisted the proposition that there should be any cap on their costs at all. It was not the position yesterday that the claimant was saying yes, there should be a cap but we can't agree the amount. Ms Rose was clearly saying no cap at all; she argued the point, she lost it. My Lord, despite that, the Secretary of State says in the circumstances perhaps it would be appropriate for the costs of that application too to be costs in the case.

My Lord, as I say, I make it clear that there is no basis at all for the application against me on that part of the application, and the concession I make is simply taking into account the status of the claimant.

MR JUSTICE CRANSTON: Ms Kilroy?

MS KILROY: My Lord, on the interim relief, the costs are not being sought on the basis of pre-judging the outcome of the judicial review, they are being sought on the basis that this particular hearing was unnecessary. The balance of convenience is the basis on which the injunction has been granted, and it is on the balance of convenience that the claimant has repeatedly and consistently raised in letters asking the Secretary of State to suspend the policy. This hearing could have been avoided if the Secretary of State had agreed to do so. That doesn't in any way involve pre-judging the outcome of the case. So, my Lord, I accept the normal position, but this is not the normal case. We have asked the Secretary of State to agree, repeatedly, and have been refused.

On the protective costs order, the letter of the 28 April, which the PLP sent, invited, after Ouseley J had made his order, that contact be made by the Treasury Solicitors with the Public Law Project in order to seek to agree any kind of costs cap. No approach was made at any stage before two days before the hearing, in fact a day before the hearing, my Lord. So the first time at which any argument was made that there shouldn't be a costs cap at all was at the hearing, and that was because the Secretary of State had not sought to agree the PCO beforehand. So, my Lord, the position is that, as your Lordship outlined in the sequence of correspondence, the claimant has consistently invited the Secretary of State to approach it to discuss the costs position, and the Secretary of State has consistently refused to do so. In those circumstances, it is appropriate that the costs of yesterday's hearing should be awarded to the claimant.

MR JUSTICE CRANSTON: In my view, the normal rule should obtain, and there will be costs in the case.

MR SWIFT: My Lord, shall we agree an order and send it over to you? I suspect it is more likely to be Monday morning than this afternoon.

MR JUSTICE CRANSTON: That is fine. Thank you very much.