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

MR JUSTICE OUSELEY: This is, on its face, a renewed application to apply for permission to bring judicial review proceedings in respect of the failure of the Secretary of State to make a decision on submissions made as long ago as 2005 and 2006 about the claimant's immigration status.

The application for permission came before HHJ Thornton QC sitting as a Deputy High Court Judge on 4 May 2011. In his decision he concluded that the claim had become academic since the defendant had said that the decision would be made by 8 April 2011 and, in fact, it was made by the end of March 2011. The defendant had invited the claimant to withdraw the claim with no order as to costs. The claimant, effectively, had by now conceded that proceedings were academic but sought a dismissal order with his costs being paid by the defendant.

The judge, recognising that ordinarily costs would not be ordered, considered that this was one of these cases in which it was obvious that the Secretary of State was going to lose, and hence notwithstanding that he dismissed the application for permission, he concluded that it was a case in which costs should be ordered in the claimant's favour against the defendant. The defendant does not at this hearing contest the principle of such an order. The judge then summarily assessed the costs to be paid to the claimant at £800, representing 5 hours work at £160 per hour. These were to be paid within 14 days of the service of the order. At that stage, the judge had not had submissions as to the quantum of costs either from the claimant or from the defendant. It was a summary assessment with no schedule.

The claimant was aggrieved by that order as to costs, contending that a fair order for costs would be much greater, and for the purposes of these proceedings has submitted a costs schedule which totals £4,210. However, the form in which the contest to the order of HHJ Thornton has taken has been, as I have said, by way of a renewed application for permission.

I do not consider that a renewed application for permission is the appropriate course where the challenge is solely to an order for costs or the quantum of an order for costs. Part 54.12 refers to a request that the decision be reconsidered at a hearing, and the decision to which it refers is a decision within 54.12(1) which either refuses permission or gives permission to proceed. It does not, in my judgment, cover a contest which goes solely to the principle of, or amount of, an order for costs. The appropriate way to proceed is indicated at page 1802 in The White Book, in the notes to part 54.12 under the heading of Costs at the Permission Stage.

The appropriate way was indicated by Carnwath LJ in Ewing v Office of the Deputy Prime Minister and others [2005] EWCA Civ 1583, pending any rule changes. They are applicable, with minor changes, to the circumstances which arose here. The judge refusing permission should include in the refusal a decision whether to award costs in principle and an indication of the amount which he proposes to assess summarily; the claimant should be given 14 days to respond in writing and should serve a copy on the defendant and the defendant should have 7 days to reply in writing. Thereafter, the decision would be made by the judge on the papers.

The principle is perfectly clear. Costs decisions, if objected to, should be dealt with by written submissions. Both parties should supply their submissions, to the extent that they are aggrieved, within the timetable there indicated: 14 days for the person who is aggrieved by the order, 7 days to reply; and, if both are aggrieved, they both have 14 days to apply. Here each could be aggrieved, one by the principle, the other by the quantum; but the same procedure applies to each.

In this case, the judge did not, in his order, set out any such timetable nor did he make explicit reference to any contest to his order in relation to costs being dealt with by paper submissions. It is commonplace that orders in relation to costs are made in that form. In many instances there is no need for written submissions because no issue is taken by the parties with the costs order that is made. Where no timetable is set out, as is frequently the case, but nonetheless the parties wish to take issue with the order, the principles set out in Ewing, to which I have just referred, apply. That is because the order as to the costs is effectively made without notice to the parties and the parties are entitled to make submissions that that order is wrong and should be set aside and replaced by another order. That is so whether or not the order specifically says so, and the appropriate action in this case would have been for the aggrieved claimant to make written submissions to HHJ Thornton that that sum was too low, and he would, having heard what the defendant had to say about it, have been able to make a decision on paper and would not have been entitled to refuse to do so on the grounds that he had no jurisdiction. He clearly does have jurisdiction. The timetable set out in Ewing is implicitly a timetable attached to any order which deals with costs in the way this order did.

I should add, however, that if permission is refused and an order for costs is made against the claimant, as is often the case, and there is a renewal application, the costs can sensibly and should be dealt with at the renewed oral hearing rather than there being a separate written debate about costs. That is simply by far the most convenient way for dealing with the costs of a paper application where there is, in fact, an oral renewal challenging the refusal of permission. That was not the case here because the claimant was perfectly content with the refusal of permission.

As to the costs themselves, I am satisfied that the summary order for costs was too low. The judge lacked the advantage of a schedule setting out hourly rates and costs. Mr Banner, for the Treasury Solicitor, does not take issue with any hourly rate but he contends that the time spent preparing the case in particular -- some five and three quarter hours -- was excessive. I have to do my best on a summary assessment. This is not an appropriate case for a detailed assessment. There is, in my judgment, something in the point in relation to the overall costs but it is not a large one. Were this matter to go to assessment, I expect there would be a degree of overlap between the correspondence amounts claimed and the time spent taking instructions from the client over the whole of the period.

In my judgment, the costs would be adequately reflected in a costs order in the sum of £3,700, and I so order costs.

MR BANNER: My Lord, I am grateful. I have two consequentials in relation to that. Firstly, it seems to me that there may be some benefit if your Lordship released your judgment from prohibition on citation, given it may well have application in other cases.

MR JUSTICE OUSELEY: I will.

MR BANNER: I am grateful.

MR JUSTICE OUSELEY: It may be an idea for the Treasury to seek a transcript.

MR BANNER: Yes, I would recommend that to the Treasury Solicitor.

In relation to the costs of today, a schedule was put in.

MR JUSTICE OUSELEY: I am not going to make any order for costs today. It seems to me that you have an argument that the procedure adopted was wrong, and Miss Akther would say, "For all that, I have got a very significant increase in costs." I think it is best that there is no order for costs for today.

MR BANNER: I am grateful.