England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/07/2015

Richard Clayton QC :

1. Following my earlier judgment I have been asked to make an order in relation to costs and for these purposes have received skeleton arguments both from the Defendant and the Claimant.
2. Under CPR r.44.2(4), in deciding what order (if any) to make about costs, the court is to have regard to all the circumstances including (a) the conduct of the parties and (b) whether a party has succeeded on part of its case, even if that party has not been wholly successful. Under CPR r.44.2(5)(b), the 'conduct' of the parties includes whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue.
3. Where a party that is successful overall has been unsuccessful on an issue or issues, the White Book 2015, in summarising the relevant principles, states that the court: "(1) should consider adopting an issue-based approach, and (2) in deciding what order to make in relation to that issue (or issues) may decide (a) that party should be deprived of his costs of that issue, or a proportion of those costs, or those costs from or until a certain date; or even (b) that that party should pay the costs of the otherwise unsuccessful party on that issue, or a proportion of those costs, or those costs from or until a certain date" (p.1427, para 44.2.7).
4. In paragraph 159 of my judgment I stated that I had reached the following conclusions:

a) I rejected the Claimant's submission that the Defendant's officers deliberately sought to conceal the officer's consideration of the significance of the evidence of the family members and did so without any sustainable good reason.

b) I found that the Secretary of State was under a duty of candour to make specific enquiry inside or outside her own department in relation to the Home Office records concerning the Claimant's aunt, F W in accordance with that duty of candour was required to do from 6 August 2012 onwards.

c) I found that the Secretary of State treated F A W and F W as witnesses that were worthy of belief whose asylum claims had succeeded yet allowed their account to be cross examined at the first FTT on the basis that they were not credible witnesses. In my judgment that resulted in conspicuous unfairness in her treatment of the Claimant's asylum claim.

d) I found that the evidence concerning forced returns to Somalia was tiny relative to the numbers who were liable to be returned and that the Secretary of State has failed to discharge the burden upon her to demonstrate on the balance of probabilities that there was a real prospect of removal of this Claimant to Somalia in accordance with Hardial Singh principle 1. Unfortunately, there was very little evidence concerning this issue and, doing the best I can, I found that August 2012 was the determinable point when it became apparent that the Secretary of State would not be able to effect deportation within a reasonable period.

e) In relation to Hardial Singh principle 3 I held that the critical question was whether at any determinable point it became apparent that the Secretary of State would not be able to effect deportation within that reasonable period; I did not accept the specific submissions advanced by Ms Harrison QC on this issue. However, in my judgment I found that August 2012 was the determinable point when it became apparent that the Secretary of State would not be able to effect deportation within a reasonable period. In the event that my conclusion was wrong, I next considered Hardial Singh principle 4.

f) In the facts and circumstances of the Claimant's case I found that the Secretary of State did not fail to act with reasonable diligence and expedition to effect removal in breach of the Hardial Singh principle 4.

g) In my judgment the Defendant was entitled to rely upon the findings and conclusions in the earlier FTT and UT decisions in relation to the Claimant's child. In December 2012 the Secretary of State took the initiative to place Ms Lackenby's reports before a new FTT which then fundamentally reviewed the position; and thereby satisfied her duty under section 55.

5. On the costs issue Mr Singh on behalf of the Defendant submits, in particular, that the Claimant failed in his claim that "the Defendant's officers deliberately sought to conceal the officer's consideration of the significance of the evidence of the family members and did so without any sustainable good reason" (para 159(i)); that he had made very serious allegations against the Defendant, alleging a deliberate withholding of information by the Defendant, bad faith, abuse of power and misfeasance in public office on the Defendant's part which I described by the judge as "extremely serious" (para 98). He submits that the Defendant incurred significant costs in responding to the allegations and defending herself against them, that the allegations failed, and any costs order should reflect the Claimant's failure on what was a substantial costs-bearing issue.
6. He also submits that the Claimant failed in other issues in the claim. In particular, he failed to successfully challenge any period of his detention on the basis of Hardial Singh principle 4 or on the basis of Article 8/ section 55 of the 2009 Act (see paras 159(vi)-(vii) of the judgment). He therefore submits that Given that the Claimant failed to successfully challenge the legality of the vast majority of his detention, failed on a number of costs-bearing issues and acted unreasonably in raising and pursuing the bad faith/ abuse of power allegation, the Defendant submits that the appropriate order should be that she pays 30% of the Claimant's costs.
7. Ms Harrison QC on behalf of the Claimant disputes those submissions. She submits that the Claimant is plainly the successful party and the Defendant the unsuccessful party in this litigation and the general rule should apply: CPR 44.2(a). She further submits that the Claimant does not have to establish unlawful detention for the entire period to be considered the successful party. The precise period of illegality is less important than the finding of illegality (which was defended in full by the Defendant): Belfken v Secretary of State for the Home Department [2013] EWHC 4658 per Davis J (as he then was) at [78].
8. She goes on to submit that the Defendant relies on the Claimant not having made out certain allegations in respect of disclosure but in doing so fails to highlight the following:

a) It was not until the hearing in April last year that the Defendant provided full disclosure which led to that hearing being aborted and the order requiring an explanation from the Defendant.

b) Following that hearing, the Defendant failed to comply with David Elvin QC's Order to serve an Amended Defence and further specific evidence for several months, and served that evidence only after the Claimant sought an unless order.

c) The evidence she eventually produced, the witness statement of Ben Allen, was found by the Court to be "somewhat opaque" yet when the Claimant pointed out the inadequacy of Mr Allen's statement and suggested that a departmental official be summonsed to provide evidence, the Claimant's solicitors were threatened with a wasted costs order;

d) As noted in the judgment the Defendant has apologised in respect of certain aspects and accepted that in part she erred in the disclosure she provided.

e) The Defendant acted in breach of her duty of candour towards the Tribunal.

f) It is a very serious matter and unreasonable conduct for the Defendant to have acted with conspicuous unfairness.

g) Whilst the Claimant did not succeed on his allegation of bad faith – there was sufficient basis for this to have been alleged when it was alleged, namely between April and September 2014. The Claimant was in April provided with GCID pages which had sections missing and very serious and misleading redactions made affecting the content of the GCID notes. That was unreasonable conduct. In light of the further evidence and explanation belatedly provided in Mr Allen's statement, the Claimant confirmed on 9 September 2014 that he did not pursue the allegation of bad faith. In addition, and in the event, the Claimant succeeded in the Defendant having acted contrary to her duty of candour.

h) The hearing in April 2014 was aborted by reason of the differences in the documentation provided by the Subject Access Request response and disclosure. The Claimant should not be required to bear those costs. Those were costs caused by the Defendant's conduct.

i) Nor should the Claimant be required to bear any part of the costs relating to the Defendant's long delay complying with the order of David Elvin QC, including the application for an unless order to compel compliance.

j) As set out, the Defendant made no attempt at any time to resolve this matter or protect her position on costs. In the absence of any such attempt, and in the knowledge of the potential consequences of such conduct, she cannot now rely on her costs liability being reduced to such a substantial extent.

k) She therefore submits that in order for the Claimant to have succeeded as he did, the Court was required to consider all the same evidence and hear argument on those aspects on which the Claimant did not ultimately succeed. She contends that the overlap in factual and legal issues was such that it is artificial and wrong to submit as the Defendant does that the costs are to be sectioned off, and according to the Defendant, with the Defendant only bearing responsibility for 30%.

9. As a result, Ms Harrison contends that the Claimant's costs of these judicial review proceedings should be granted to the Claimant in full.
10. However, in my judgment it is appropriate in the circumstances to make an issues based costs order. Doing the best I can I award the Claimant 90% of his costs, to be subject to a detailed assessment, if not agreed.