Fri, 12 May 2017
Paul Joseph (led by Alex Hutton of QC of Hailsham Chambers) and instructed by the Government Legal Department, has won a landmark case for the Immigration and Asylum First Tier Tribunal in the Court of Appeal.
The Appellant applied for an order for costs against the Tribunal following her successful application for judicial review of the Tribunal’s decision to refuse an adjournment of an appeal that she was making to that Tribunal.
The Appellant’s subsequent application for a costs order against the Tribunal was refused. The leading authority on the making of costs orders against a Tribunal or other inferior court was R (Davies) -v- Birmingham Deputy Coroner  EWCA Civ 207. That case ruled that a costs order could only be made against a Tribunal or other inferior court in limited circumstances, including where there had been flagrantly improper behaviour on the part of the Tribunal. There had been no such behaviour in this case – the Tribunal had simply made an error. The substantive respondent to the appeal, the Secretary of State for the Home Department, had played no part in the matter and the Tribunal itself had not contested the judicial review proceedings.
The Appellant appealed to the Court of Appeal and contended that the test for the making of a costs order against a Tribunal should be less restrictive than set out in Davies and more along the lines of R(M) -v- Croydon London Borough Council  1 WLR 2607. That case decided that a successful judicial review claimant should ordinarily obtain costs.
The Court of Appeal, in a unanimous judgment, disagreed and declined to change the criteria for making a costs order against a Tribunal. R(M) -V- Croydon London Borough Council did not consider the liability of Tribunals for costs orders at all and, in reality, did not constitute any new approach to the making of costs orders. Where there is a substantive defendant and a winner, the winner will usually obtain his costs. It would be a serious step, and a step which the Court of Appeal was not prepared to take, to place a Tribunal at risk of a costs order in an undefended appeal or judicial review. Such a step would constitute a substantial inroad into the normal rule of judicial immunity as set out in Sirros -v- Moore  QB 118.
The case is reported as R(Gudanaviciene) -v Immigration and First Tier Tribunal  EWCA Civ 352.
Paul Joseph is a member of the Commercial Litigation group at No5.