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

MR JUSTICE TREACY: The claim in this case for judicial review has been withdrawn earlier this afternoon.

The defendant claims his costs in full as the claim has been withdrawn and the application dismissed. That is resisted on behalf of the claimant who says that he had permission, which he undoubtedly did. However it is the fact that in the grounds of resistance, delivered almost a year ago, attention was drawn to the fact that on 1 January 2012 this claimant would qualify for right of settlement in the United Kingdom. That date has now passed so the claim has in fact become academic. A warning that it was likely to become academic was there for many months.

I have considered the papers. On a consideration of the authorities relied on in the original claim form and on the subsequent authority put forward as recently as the earlier part of this week - EK v Turkey - none of the authorities relied on by the claimant were remotely capable of sustaining the argument which the claimant sought to put forward. His claim, it seems to me, was one which was doomed to failure on the merits quite apart from the fact that it was apparent that the claim was going to become academic with effect from 1 January 2012. Nevertheless the claim has come to court today. Judicial time has been expended in considering the papers. Court time has been set aside. Counsel for the defendant has only discovered very shortly before the hearing that the claimant is not going to pursue the claim. It is urged upon me that at mid-morning this morning the solicitor for the claimant wished to withdraw the claim and to avoid attendance at court this afternoon. Matters, in my judgment, were too far gone to avoid an occurrence of that sort.

In all the circumstances I am satisfied that it is appropriate to award the defendant its costs in full. It is clear that this was a claim that should not have been persisted in notwithstanding the grant of permission some time ago.

The costs schedule before me seeks a little over £4,500. I will deal with that by way of a broad-brush assessment. I consider that the appropriate sum to order is rather less than that. Whilst I consider counsel's fees to be reasonable, I consider the other costs to be too high. I reduce the amount claimed to the sum of £3,490. There is no VAT claimed. So that is the sum in which the order is made - £3,490.

MR PALMER: I am grateful.

MR JUSTICE TREACY: Mr Palmer, I was very much helped by your grounds of resistance and then the additions made in your skeleton argument. I am grateful. Thank you both.