European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 29930/10
Eric Efeosaosere OKUONGHAE
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 24 January 2012 as a Chamber composed of:

Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
George Nicolaou,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 1 June 2010,

Having regard to the comments submitted by the United Kingdom Government and the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Eric Okuonghae, is an American national who was born in 1981 and lives in London. He was represented before the Court by Alpha Rocks Solicitors, lawyers practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms J. Neenan of the Foreign and Commonwealth Office.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was born in the United States of America in 1981. In 1982, his family returned to their country of origin Nigeria.

On 20 August 1986, the applicant arrived in the United Kingdom. On 10 June 1998, the applicant and his family were granted indefinite leave to remain in the United Kingdom. The applicant’s parents, brother and two sisters are all now British citizens.

On 1 September 2006, at Croydon Crown Court, the applicant was convicted of possession of criminal property (bank cards) and a false instrument (a false passport) and was sentenced to 12 months’ imprisonment. On 24 November 2006, the applicant was served with a notice of the decision to deport him.

On 5 November 2007, the then Asylum and Immigration Tribunal (“the AIT”) dismissed his appeal against deportation. On 22 November 2007, a Senior Immigration Judge refused his application for reconsideration. On 25 June 2008, a further application for reconsideration was dismissed by the High Court. On 13 August 2008, the applicant was deported to the United States of America.

On 15 August 2008, the applicant re-entered the United Kingdom. In September and October 2009, the applicant submitted further representations to the United Kingdom Border Agency. On 5 November 2009, the Secretary of State refused those representations and refused to revoke the deportation order against him. On 14 January 2010 and 14 May 2010, the High Court refused his applications for permission to apply for judicial review. On 1 June 2010, the Court of Appeal granted a stay upon the applicant’s deportation to the United States of America pending the outcome of his application for permission to appeal. On 17 August 2010, the Court of Appeal refused his application for permission to appeal.

On 13 September 2010, the applicant lodged an application with this Court and requested an interim measure, under Rule 39 of the Rules of Court, to prevent his deportation to the United States of America. On 17 September 2010, the President of the Chamber to which the application was allocated decided to refuse that request. On 20 September 2010, the applicant was deported to the United States of America. On 13 January 2011, the application was communicated to the Government for their observations.

B.  Subsequent Developments

On 23 May 2011, the Secretary of State decided to revoke the deportation order against the applicant. On 17 June 2011, the United Kingdom Border Agency reinstated the applicant’s indefinite leave to remain in the United Kingdom.

In August 2011, the applicant returned to the United Kingdom on a flight paid for and arranged by the United Kingdom Border Agency. Accordingly, the Government, in a letter dated 26 August 2011, stated that they considered that the application had been resolved and requested that the Court strike the case out of its list on that basis.

In letters dated 5 August and 28 September 2011, the applicant’s representatives submitted a breakdown of their costs which totalled GBP 52,490.02. The applicant’s representatives submitted that, in the absence of the Government paying the applicant’s costs in full, the applicant would not accept that the application had been resolved and would not agree to the application being struck out by the Court.

In letters dated 12 September 2011 and 28 October 2011, the Government submitted their comments upon the applicant’s costs.

COMPLAINTS

The applicant complained under Article 8 of the Convention that his deportation to the United States of America was a disproportionate interference with his right to respect for his private and family life in the United Kingdom. Further, he complained that his deportation breached Article 3 of the Convention.

THE LAW

A.  Article 37 § 1 of the Convention

Article 37 of the Convention provides:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application; or

(b)  the matter has been resolved; or

(c)  for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2.  The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

In order to determine whether an application should be struck out of the list pursuant to Article 37 § 1 (c) the Court must consider whether the circumstances lead it to conclude that “for any other reason....it is no longer justified to continue the examination of [it]”. The Court recalls that it enjoys a wide discretion in identifying grounds capable of being relied upon in a strike out application on this basis; however, it also recalls that such grounds must reside in the particular circumstances of each case (Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 37, ECHR 2006 XIV; M.H. and A.S. v. the United Kingdom (dec.), nos. 38267/07 and 14293/07, 16 December 2008; B.S. and Others v. the United Kingdom (dec.) no. 7935/09, 30 November 2010).

In the Court’s view, the particular circumstances of this application are such that it is no longer justified to continue its examination. In that regard, the Court notes that the deportation order in force against the applicant has been revoked and that the applicant has returned to the United Kingdom at the expense of the United Kingdom Border Agency. Moreover, he has been granted indefinite leave to remain in the United Kingdom, which has reinstated to him the leave, status and attendant benefits that he enjoyed in the United Kingdom prior to his deportation. The Court notes that the applicant’s sole objection to the application being struck out of the Court’s list is the issue of costs. The Court does not consider that such an issue alone justifies the continued examination of the application given that the issue of costs is dealt with separately below.

Finally, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case.

In view of the above, it is appropriate to strike the case out of the list.

B.  Application of Rule 43 § 4 of the Rules of Court

Rule 43 § 4 of the Rules of Court provides:

“When an application has been struck out, the costs shall be at the discretion of the Court. ...”

The applicant claimed a total of GBP 52,490.02 in legal costs and expenses, which is approximately EUR 61,390. This comprised the costs and expenses incurred both before this Court and those incurred during the domestic proceedings, including before the High Court and the Court of Appeal. The costs and expenses of the applicant’s solicitor comprised costs of approximately GBP 38,200 (including over GBP 25,000 for almost 101 hours spent on documents) and expenses of GBP 2,990 (including GBP 2,375 for the preparation of the bill of costs). The solicitor’s hourly rate was GBP 250. On the information submitted to the Court, it is not possible for the Court to specify the precise costs incurred in the domestic proceedings and those incurred before this Court.

Counsel’s fees amounted to GBP 11,277.52 (inclusive of value-added tax (VAT)). This included GBP 1,008.75 in fees incurred in relation to bail applications and GBP 7,749.16 in fees incurred before the Court of Appeal. The fees incurred before the Court of Appeal included GBP 7,050 for leading counsel for advocacy at two hearings and GBP 744.16 for three hours and ten minutes work drafting the grounds for an application for a stay at the Court of Appeal. The remaining GBP 2,519.61 of counsel’s costs covered ten hours and forty minutes work by junior counsel in relation to bringing the application before this Court.

The Government first submitted that the Court should not make an award of costs because they had not accepted liability nor had they accepted that the United Kingdom had breached the applicant’s rights under the Convention. They asserted, inter alia, that they should not be penalised for making an early decision in the applicant’s favour to exercise their discretion to revoke the deportation order against him, to facilitate his return to the United Kingdom and to grant him indefinite leave to remain in the United Kingdom. Indeed, they argued that in taking such a decision, they had avoided prolonged anxiety for the applicant and reduced the burden on the Court.

Second, the Government did not accept that the amount claimed by the applicant was reasonable given that the facts of the application were relatively straightforward and that the application did not raise novel or complex issues of law.

Third, the Government considered that the costs claimed by the applicant in the domestic proceedings were not “necessarily” incurred because the applicant had pursued domestic proceedings that were hopeless on procedural grounds and he had failed to pursue a domestic remedy that would have been properly open to him.

Fourth, the Government submitted that the hourly rate of GBP 250 was excessive and that the quantum of the costs claimed by the applicant was grossly disproportionate to the amount of work that would have been necessary and proportionate.

Finally, the Government argued that the costs claimed by the applicant should be proportionate to those incurred by the Government and those awarded by the Court in other cases of a similar nature. They noted that the total figure for the Government’s disbursements to counsel in both the domestic proceedings and in the proceedings before this Court amounted to GBP 4,780 plus VAT. They also pointed out that in Ahmed v. the United Kingdom (dec.) no. 31668/05, 14 October 2008, the total amount awarded in respect of both the domestic proceedings and the proceedings before the Court was EUR 13,500.

Commenting upon the Government’s submissions, the applicant argued that, by revoking the deportation order and facilitating the applicant’s return to the United Kingdom, the Government had impliedly admitted that they had violated the applicant’s Convention rights and they were therefore liable to pay all of his costs. They argued that the applicant had endured a considerable amount of pain and distress as a result of the Government’s actions in deporting him and that the Government should therefore pay his costs in full. Finally, the applicant argued that the costs claimed for bringing the proceedings both domestically and before this Court were reasonable both in nature and amount.

The Court reiterates that the general principles governing reimbursement of costs under Rule 43 § 4 are essentially the same as under Article 41 of the Convention (see Youssef v. the Netherlands (dec.), no. 11936/08, 27 September 2011, Pisano v. Italy (striking out) [GC], no. 36732/97, §§ 53-54, 24 October 2002 and Voorhuis v. the Netherlands (dec.), no. 28692/06, 3 March 2009) and is unable to accept the Government’s submissions that no award of costs should be made to the applicant in the present case. The Court further recalls that an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum (Sahin v. Germany [GC], no. 30943/96, § 105, ECHR 2003 VIII; D.G. v. Ireland, no. 39474/98, § 128, ECHR 2002-III).

In addition, it is in principle open to applicants to seek costs and expenses incurred before the domestic courts but the Court will only make such an award where these proceedings were concerned with preventing or seeking redress for the alleged violation of the Convention (see Ahmed, cited above, and further references therein). The Court finds that this requirement was met in the present case since the domestic proceedings were directly concerned with revoking the deportation order against the applicant and he relied on Articles 3 and 8 of the Convention throughout those proceedings. In the absence of a detailed examination of the admissibility of the application, the Court is unable to accept the Government’s arguments that those costs were not “necessarily” incurred because they were hopeless on procedural grounds.

Nevertheless, the Court finds that the total costs claimed by the applicant are excessive. In that regard, the Court considers both that the hourly rate of GBP 250 of the applicant’s solicitor and that the amount of hours of work conducted by the applicant’s solicitor was excessive. By way of example, the Court does not accept that it was necessary for the applicant’s solicitors to have spent almost 101 hours working on documents or to have incurred almost GBP 3,000 for the costs of telephone calls with the applicant.

In all of the circumstances, having regard to the relative lack of complexity of the proceedings and in particular to the fact that the Court has decided to strike the case out of its list at a relatively early stage in proceedings, the Court considers that the applicant’s costs should be met only in part.

Ruling on an equitable basis, the Court thus awards him EUR 10,000, inclusive of VAT, in respect of costs and expenses.

For these reasons, the Court unanimously

1. Decides to strike the application out of its list of cases.

2. Holds

1. that the respondent State is to pay the applicant, within three months, EUR 10,000 (ten thousand euros) plus any tax that may be chargeable, in respect of costs and expenses, to be converted into pounds sterling at the rate applicable at the date of settlement;

2. that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Lawrence Early Lech Garlicki
Registrar President