Paul Joseph successfully represented the Home Secretary in an application heard this week by the Court of Appeal in which an Appellant applied for an order under one of the new rules introduced on 1 April 2013 as part of the Jackson reforms – CPR Part 52.9A.

This rule applies when a case which starts in a first instance jurisdiction which usually does not make costs orders, moves to one which ordinarily does.  In J E Jamaica –v- Secretary of State for the Home Department [2014] EWCA Civ 192, the case had started in the Immigration and Asylum Tribunal, which does not usually make costs orders and, after an Appeal to the Upper Tribunal, moved to the Court of Appeal.  The rule permits a party to apply for an order to limit the costs incurred in the appeal which might be recoverable from that party in the event that he or she loses.

The Appellant obtained limited permission to appeal to the Court of Appeal.  Approximately 6 months later and a week before the appeal was to be heard, she applied for orders which would not only have limited the costs which were recoverable from her but also for orders that would have required the Home Secretary to pay some of the Appellant’s costs, in any event.  The rule stipulates that any application must be made as soon as practicable.

The application was heard by Lords Justices Laws, Jackson and Black. The Court of Appeal confirmed that CPR Part 52.9A was not a rule which permitted the court to make a one way costs shifting order but was a rule which allowed the court to put in place a regime which was similar to the regime from which the case had originated i.e. a no costs regime.  There are separate rules which provide for one way costs shifting orders and this one was not one of them.

The Court of Appeal declined to lay down any hard and fast rules as to what was meant by “as soon as practicable” and decided that this application had been made far too late and for orders which the court could not make.  The application was therefore dismissed. 

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