THE INFORMATION TRIBUNAL
(NATIONAL SECURITY APPEALS)
(Sir Anthony Evans, President
James Goudie QC
Kenneth Parker QC)
|MOHAMED AL FAYED||Appellant|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT|
|THE SECRETARY OF STATE FOR FOREIGN AND COMMONWEALTH AFFAIRS||
28(5) If on an appeal under subsection 28(4), the Tribunal finds that, applying the principles applied by the court on an application for judicial review, the Minister did not have reasonable grounds for issuing the certificate, the Tribunal may allow the appeal and quash the certificate..
28 - (1) In any appeal before the Tribunal, including one withdrawn under Rule 13 above, the Tribunal may make an order awarding costs –
(a) in the case of an appeal under section 28(4) of the Act –
(i) against the appellant and in favour of the relevant Minister where it considers that the appeal was manifestly unreasonable;
(ii) against the relevant Minister and in favour of the appellant where it allows the appeal and quashes the disputed certification, or does so to any extent;
(b) [concerned with section 28(6) appeals]; and
(c) where it considers that a party has been responsible for frivolous,vexatious, improper or unreasonable action, or for any failure to comply with a direction or any delay which with diligence could have been avoided, against that party and in favour of the other..
(1) Rule 13 permits the withdrawal of an appeal by the Appellant, but there is no corresponding provision in the Rules whereby the Respondent Minister may indicate that an appeal is no longer opposed;
(2) Neither party suggested that the Tribunal has power to make a Costs Order outside the scope of Rule 28; and
(3) Neither party suggested that the disciplinary power contained in Rule 28(c) might be exercised in the present case.
History of the proceedings
- I can confirm that the [Home Secretary] accepts for the purposes of this appeal that his certificate dated 22 July 2000 is quashed.
- I reiterate my affirmation that the [Foreign Secretary] intends to withdraw his certificates, both dated 30 July 2000. In these circumstances, the question of the quashing of his certificates does not arise.
Both the Home Secretary and the Foreign Secretary will shortly be issuing new certificates applicable to Mr. Al Fayed; the Tribunal and his solicitors will be informed as soon as the certificates have been issued.. (letter dated 7 December 2001)..
"The Respondents now submit that as the certificates against which this appeal was made will no longer be in force, the appeal itself should either be withdrawn or dismissed. The Respondents, therefore, consider that no other directions are necessary.. (letter dated 7 December 2001)
"......we intend to seek the following:
(a) an Order allowing our client`s appeals in the matter;
(b) an Order quashing the relevant certificates in our client`s case; and
(c) an Order awarding our client his costs in relation to the appeals.. (letter dated 10 December 2001)
"It is important to note that the section 15 appeal challenged an existing decision, a past event, whereas the section 8 appeal involved consideration of a possible future event, albeit one which could not take place without a decision to make a deportation order." (para. 4 p.310)
Her appeal under section 15 succeeded but that under section 8 was dismissed. She was then granted exceptional leave to remain in this country for a period of four years. She sought to appeal against the section 8 decision so that she would have the status of a refugee when that period expired. The Immigration Appeal Tribunal held that this appeal must fail (para.7(4)). The Court of Appeal upheld the decision. Its conclusion was stated by Kennedy LJ as follows –
"30. In my judgment the answer to this appeal is to be found in the wording of section 8(3). The decision to make a deportation order is not simply a condition precedent to an appeal. It is that decision which is the subject matter of the appeal, and if it has been withdrawn or quashed there is nothing left to argue about. It follows that the appellant`s success in her appeal under section 15 of the 1971 Act left the Immigration Appeal Tribunal with no alternative but to dismiss her appeal under section 8 of the 1993 Act" (p.317)
"It has always been a fundamental feature of our judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved",
".... litigation may sometimes be properly continued for the sole purpose of resolving an issue as to costs when all other matters in dispute have been resolved.. (per Lord Bridge in Ainsbury v.Millington  1 WLR 379 at 381).
(1) The appeal was properly brought before the Baker Decision was published;
(2) The certificate issued by the Home Secretary was quashed by the Tribunal after a full hearing in the Baker appeal;
(3) The Foreign Secretary, shortly before the hearing, withdrew and revoked the certificates issued by him which are challenged in this appeal;
(4) The Appellant`s solicitors invited the Respondents to withdraw their opposition to the appeal in the light of the Baker decision, soon after that decision was published, but they did not receive a definite response until early December, only days before the date fixed for the hearing;
(5) The Appellant has succeeded in the appeal.
We therefore hold and direct that the appeal is allowed and that the Appellant shall recover his costs of the appeal from the Respondents pursuant to Rule 28(a)(ii) of the Rules. The amount of costs shall be assessed if not agreed, pursuant to Rule 28(4), and we give leave to both parties to apply for further directions with regard to the scale of assessment, if such directions prove necessary. For the avoidance of doubt, the liability of the Respondents shall be joint and several.
Signed this 28th day of February 2002
The Rt.Hon. Sir Anthony Evans (President)
James Goudie QC
Kenneth Parker QC