In an important test case today, 18 February 2018, the Court of Appeal has ruled the Secretary of State may be liable in costs for a successful claim for ‘Cart’ judicial review brought by an asylum applicant to quash the decision of the Upper Tribunal for refusing to grant permission to appeal on an important point or for some compelling reason.

At the same time, in R (Faqiri) v Upper Tribunal with SSHD [2019] EWCA Civ 151, Hickinbottom LJ upheld the rule that ordinarily an inferior court or tribunal will not be liable for the costs of judicial review to correct its own mistake unless the tribunal has actively defended its position in the High Court proceedings. 

The number of successful Cart claims are vanishingly small, and Becket Bedford of No5 Barristers’ Chambers argued they will be smaller still if the talented lawyers who take these claims on behalf of unaccompanied children, as in this case, are unable to recover the costs of doing so against one or other of the Upper Tribunal or the Secretary of State.   

The argument is that that higher principle of access to justice is impeded.  Although the claimant was awarded his costs in the High Court below, it was a Pyrrhic victory.  The High court awarded him costs contingent on the outcome of his tribunal appeal.  The difficulty with that approach is, win or lose, costs in the tribunal are payable only if the other party has acted unreasonably.  In this case there was no suggestion of unreasonable conduct by anyone except perhaps the tribunal.   The Court held it was bound by its previous decision in R (Gudanaviciene) v First-tier Tribunal [2017] EWCA Civ 352 to refuse to award costs against the Upper Tribunal.

Paul Joseph of No5 Barristers’ Chambers, for the Government Legal Department, cross-appealed the High Court’s decision to award costs against the Secretary of State on the ground that the Secretary of State took no role in the High Court proceedings and ought not to bear a risk in costs for the Upper Tribunal’s error.  The Court rejected this argument too.  

Both parties are considering their position whether to appeal.