England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		17 February 2010

Wednesday 17 February 2010

MR JUSTICE WYN WILLIAMS:

1. I begin this judgment with these general observations. Yesterday evening, after I had undertaken some work towards preparing for a hearing scheduled to last a day-and-a-half, I was told that the defendant proposed to release the claimant from detention. That was obviously an important piece of information because the whole focus of the proposed proceedings was whether or not the detention of the claimant by the defendant had been, and continued to be, lawful. I was also told, quite properly, in a letter from the Treasury Solicitor that at that stage it was not known what effect the release of the claimant would have on the conduct of the proceedings.
2. The case was listed to start at 11.15am this morning. Shortly before 11.15 I was asked by counsel instructed on behalf of both the claimant and the defendant to permit more time since discussions were taking place to settle the proceedings. I happily acceded to that request since it seemed to me to be overwhelmingly in the interests of justice that if a settlement could be achieved, the court should do what it could to facilitate such a settlement. Shortly after 11.30am I was told that the parties had come to terms, save as to the issue of costs, and a query was made about whether I would prepared to hear argument if necessary on costs at 2pm. I readily acceded to that request because it seemed at least possible, if not likely, that in the intervening period further discussions would either narrow the issues or result in an agreement about costs.
3. In the event, at 2pm this afternoon I was presented with a draft order which showed that the parties had compromised these proceedings but that they wished me to adjudicate upon the issue of costs.
4. It is not always easy for a judge to adjudicate upon an issue of costs when detailed and complicated proceedings are compromised by the parties. The parties may see the compromise in a particular way. The judge may consider it in a different way. More than once in this court it has been said that a judge placed in the position of having to adjudicate on the issue of costs, all other things being agreed, should not be asked to embark in effect upon a trial of the issues so as to determine the proper order for costs. Rather he (or she) should be asked to make a judgment based upon a broad-brush assessment. In fact the making of broad-brush assessments is not easy in cases where there are detailed arguments one way and the other. I have chosen to make these introductory remarks to remind the parties that, when cases are settled, it is truly and normally in their best interests to settle everything since they run the risk that a broad-brush approach taken by a judge to the issue of costs may leave them both feeling dissatisfied.
5. This case is a good example of the difficulties involved in making a decision which is just. The case involves the consideration of a very detailed immigration history, the consideration of important decisions of the Court of Appeal and judges of this court, and the making of detailed assessments about various facts and the inferences to be drawn from such facts. If this sounds like an excuse for what is to follow, so be it. But the plain fact is that it would be difficult truly to do justice in a case of this kind on the issue of costs without in effect embarking upon a trial of all the relevant issues. Since that is not permissible, and since the parties recognise that that is so, there is an element of broad-brush justice in what is about to occur.
6. The salient and stark facts relating to the claim are these. The claimant is an Iranian national. He has been in administrative detention since April 2007. It is the defendant's "desire" to deport him to Iran, believing that that is conducive to the public good. During periods since April 2007 the claimant has taken some steps which could properly be interpreted as being steps which suggested that he was willing to return voluntarily; but at crucial moments in that process he has resiled from those steps and he has never in fact taken all the steps necessary to allow for his removal to Iran. At other times during this same period he has expressed trenchant views to the effect that he does not wish to return to Iran. The consequence has been that a significant period of detention on any view has ensued. The claimant has been in detention for a period close to three years, although he is about to be released.
7. So far as I can judge, the appropriate processes have been undertaken. There have been regular detention reviews and the claimant has been kept informed of matters relating to his detention. As I have indicated, from time to time during that period steps have been initiated towards persuading the claimant to return voluntarily to Iran, but they have come to nothing.
8. These proceedings commenced in the autumn of last year. They moved with some speed, as was to be expected given that the liberty of the subject was involved. By December, when the claim came before Collins J, it was anticipated that the lawfulness of the claimant's detention would be tested early this year. Throughout the proceedings on the face of it the claimant and defendant have adopted polarised positions. On the pleadings at least the claimant has maintained that substantial periods of his detention to date have been unlawful. The defendant's stance is that no period of detention up to the present time has been unlawful. Detailed arguments have been presented by both sides to justify their respective positions.
9. On or about 5 February 2010 the claimant served a witness statement. His counsel, Miss Patel, served a skeleton argument, which is dated 4 February and was served shortly thereafter in support of his claim. The witness statement is acknowledged by Miss Anderson for the defendant to be significant. In it the claimant asserts that he does not wish to return to Iran and that wish is not likely to be changed. In other words, he removes all prevarication about his intention to return.
10. During the course of argument it became clear, essentially because of what Miss Anderson told me, that the contents of that witness statement, insofar as it related to the claimant's unequivocal view about not returning to Iran, taken together with the long period of detention which has already elapsed, led the defendant to reach the view that the claimant should be released from detention. Although the witness statement was served approximately fourteen days ago, I readily accept that decisions of this kind are not taken at the drop of a hat and that inevitably some time would go by from the receipt of that statement before its significance was fully appreciated and then a decision upon it made.
11. Essentially, Miss Anderson asks me to accept that although the witness statement is significant in the sense that it provided to the defendant cogent evidence of the current view of the claimant about whether or not he would return to Iran, nonetheless I should not view it as a step which caused the defendant to capitulate in the proceedings. She submits that this information, coming in any form, would have been assessed by the Secretary of State and that it is not the fact of the proceedings which has caused the Secretary of State to agree to the release of the claimant.
12. Miss Patel says that that cannot be right; it cannot be a coincidence that, as the hearing loomed large and as the evidence was gathered in, so the decision to release the defendant was made for reasons unconnected with the likely result in the proceedings. A coincidence of that kind is simply not possible.
13. It seems to me that I must first consider whether it is possible to discern whether or not there has been a party who has been properly substantially successful by virtue of this compromise. That is my way of putting what was said in a well-known series of cases culminating in R(Boxall) v Mayor and Burgess of the London Borough of Waltham Forest, a decision of Scott Baker J (as he then was) given in December 2000. If I can be satisfied, on a reasonable assessment of the papers but without any kind of detailed appraisal, that one party has obviously succeeded by virtue of this compromise, then it would be appropriate, subject to other considerations which may be relevant, to award costs in favour of that party. But unless I could reach that state of mind without undue difficulty, it would be a fall-back position or good practice simply to say: no order for costs between the parties.
14. The rival contentions in this case are: the claimant has been substantially successful (that is Miss Patel's position); that is not so (that is Miss Anderson's position). Consequently, the former argues for a costs order in favour of the claimant, and the latter for no order as to costs.
15. My first decision therefore is to consider whether I can confidently say that the consequence of this compromise is that the claimant has substantially succeeded. On at least a superficial basis he has substantially succeeded, since he is to be released from detention. On any view that would be regarded by him (and I suspect by most objective observers) as a substantial success. So the only issue, as I see it, becomes: has that success been caused by these proceedings; or is it, as Miss Anderson asks me to find, simply a coincidence that the success arrives at the door of the court?
16. My instinct tells me that it is caused by the proceedings. That is why I started this judgment by suggesting that there may be a measure of rough justice. I cannot delve into the details of what has occurred. Perhaps, more importantly, there is no evidence as to what has motivated the defendant. I am far from suggesting that courts should be further burdened by statements from officials explaining why decisions have been reached in order to make a decision about costs; but in a case of this kind, where the decision is taken the night before the hearing, however it may be that there would be need to be discussions and the like in advance of the actual decision, it is hard to escape the conclusion that the proceedings are not a highly material factor in the reasons for the decision in question.
17. That leads me inexorably to the view that the claimant has substantially succeeded, and has done so because of the proceedings. He has not, however, wholly succeeded. Although neither party has asked me to consider the question of whether or not it is appropriate to award the claimant the whole of his costs, that is a point I should consider.
18. In this case it would have been open to the claimant to continue the proceedings before me. In a sense one would expect that since he had been told he was to be released and so what, one might ask rhetorically, did he have to lose by seeking to present a case that some or all of his detention to date had been unlawful? He chose not to do that. But the consequence of that is that there is no finding that to date the defendant has behaved unlawfully. It may be, and I can only speculate, that a sensible and balanced view was taken that it would have been difficult to prove unlawfulness for any substantial period of time relating to detention to date, but that events in the last few weeks have so crystallised the position that it would be reasonably predictable that detention as of now and henceforth was likely to be considered unlawful. That again may be an example of a broad-brush approach which in truth is inaccurate, but in my judgment it is an inevitable conclusion if one approaches these case in the way that I am bound to do.
19. In my judgment the position is as follows. The claimant has had a substantial success. That has been brought about by these proceedings. That is a conclusion properly open to me on a broad-brush approach. However, he has not been wholly successful. That seems to me to be implicit in the compromise which the parties have reached. In those circumstances, in my judgment, a just order is that he should recover a reasonably substantial proportion of his costs. There is no possibility that I could deal with this on a discrete issue-by-issues basis. I have to look at it in the round. I have concluded that the appropriate percentage that I should award is two-thirds.
20. I direct that the defendant should pay two-thirds of the claimant's costs, to be taxed on a standard basis if not agreed. If you are both unhappy, then that makes me happier.

MISS PATEL: We can hand up the order, my Lord.

MR JUSTICE WYN WILLIAMS: You have actually agreed the terms?

MISS PATEL: Yes.

MR JUSTICE WYN WILLIAMS: The "liberty to apply", is that in case something goes wrong over the release? Is that what is intended?

MISS PATEL: Essentially, yes.

MR JUSTICE WYN WILLIAMS: Fine. Yes, thank you.