United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

BEFORE Upper Tribunal Judge Jackson

 

HAVING considered all documents lodged and having heard Mr A Rosemarine of Counsel, instructed on a direct access basis by the Applicants and Ms J Thelen of Counsel, instructed by GLD, for the Respondent at a hearing on 2 October 2020 and having heard from Ms Naik QC of Counsel in writing on behalf of Mr Rosemarine only, instructed by Womble Bond Dickinson.

 

IT IS ORDERED THAT:

 

(1)     The application for judicial review is academic for the reasons in the attached judgment, the decisions under challenge having been withdrawn by the Respondent.

 

(2)     The Respondent to pay the Applicants' reasonable costs of this application for Judicial Review up to 30 June 2020; to be subject to detailed assessment if not agreed.

 

(3)     The Respondent is awarded her reasonable costs of this application from 1 July 2020, summarily assessed in the sum of £5998.

 

(4)    Mr A Rosemarine (Counsel instructed on behalf of the Applicants at the time) is to pay the Respondent's reasonable costs from 1 July 2020 by way of wasted costs.

 

(5)     Permission to appeal is refused for the reasons given in the attached judgment.

Signed: G Jackson

 

Upper Tribunal Judge Jackson

 

Dated: 14 ^th October 2021

 

 

The date on which this order was sent is given below

For completion by the Upper Tribunal Immigration and Asylum Chamber

 

Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent's and any interested party's solicitors on (date): 14/10/2021

Solicitors:

Ref No.

Home Office Ref:

 

Notification of appeal rights

 

A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.

 

A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).

 

If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant's notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal's decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).

 

 

 

Case No: JR/ 719/2020(V)

IN THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Heard by remote audio and video means (Skype)

Field House,

Breams Buildings

London, EC4A 1WR

 

14 ^th October 2021

Before:

 

UPPER TRIBUNAL JUDGE JACKSON

 

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Between:

 

THE QUEEN

on the application of

Hisham Jarmakani & Sana Jarmakani

Applicants

- and -

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

Mager Jarmakani & Malek Jarmakani

Interested Parties

 

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Mr A Rosemarine of Counsel ^[1]

(instructed on a direct access basis) for the Applicants

 

Ms J Thelen of Counsel

(instructed by the Government Legal Department) for the Respondent

 

Hearing date: 2 October 2020

 

- - - - - - - - - - - - - - - - - - - -

 

J U D G M E N T

 

- - - - - - - - - - - - - - - - - - - -

 

 

Judge Jackson :

 

1.               This is an application for Judicial Review by Hisham and Sana Jamarkani, a husband and wife resident in Syria, against the Respondent's refusal of their applications for entry clearance as visitors to the United Kingdom dated 23 September 2019. The Interested Parties are the Applicants' family members in the United Kingdom whom they applied for entry clearance to visit. There is also a document stating that Mager Jarmakani (one of the Interested Parties) has full authority to conduct proceedings on the Applicants' behalf in a document entitled 'Power of Attorney' dated 20 November 2019.

 

2.               Whilst this application has been listed for a substantive hearing in the Upper Tribunal, the only outstanding issue between the parties is costs; the decisions under challenge having been withdrawn by the Respondent with subsequent further decisions having already been made to grant entry clearance to both Applicants. It has been necessary to list an oral hearing as the parties have been unable to agree a form of consent to dispose of the application and the Applicants refused the offer for the issue of costs to be determined on the papers by a Judge.

 

3.               In summary, the Applicants seek their reasonable costs of this application for Judicial Review and the Respondent seeks no order as to costs up to 1 July 2020 and her costs thereafter. The history of this application for Judicial Review and in particular the conduct of the parties throughout, particularly since July 2020, is relevant to the assessment of the parties' respective applications for costs and it is therefore necessary to set this out in some detail.

 

4.               The application for Judicial Review was initially deemed issued on 31 December 2019 in the High Court, an earlier attempt to lodge the application having been made in Manchester on 20 December 2019 having been returned. On 28 January 2020, the High Court transferred this application for Judicial Review to the Upper Tribunal pursuant to section 31A of the Senior Courts Act 1981, a decision affirmed by Mr Justice Supperstone on 10 February 2020 following a challenge to the transfer order and a request for reconsideration.

 

5.               The Applicants' challenged the decisions in relation to each of them dated 23 September 2019 (later upheld on review on 27 November 2019 and in pre-action correspondence on 10 December 2019) on the following grounds. First, the Respondent's refusals were illegal, unreasonable, unfair and discriminatory, in particular because the Respondent had failed to take into account factors in the Applicants' favour such as their strong family and cultural links to their home area in Syria (including caring for their three year old grandson) and that the Sponsors are permitted to finance their visit in accordance with paragraph 4.3 of Appendix V of the Immigration Rules, of which sufficient evidence was provided with the applications. Further, the Applicants have previously complied with immigration law and the second Applicant returned home after a visit in 2009 in compliance with her visa. Secondly, the Respondent's refusals were in breach of Article 8 of the European Convention on Human Rights. Thirdly, the Respondent's refusals breached the Applicants' legitimate expectation of being granted visas having complied with all of the necessary rules. Fourthly, the Respondent's refusals were discriminatory against Syrian nationals contrary to Article 14 in combination with Article 8 of the European Convention on Human Rights. Fifthly, the Respondent's refusals breached section 29 of the Equality Act 2010.

 

6.               The relief sought by the Applicants in their application was as follows:

 

(i)             Quashing of SSHD's 23 September 2019 refusals of Jarmakanis' visitor visa applications;

(ii)           SSHD grant Jarmakanis' visitor visas forthwith;

(iii)         Indemnity Costs against SSHD (SSHD failed to address above issues despite 2 PAP-Compliant letters from us),

 

And as Interim Order:

 

(iv)         HO to disclose to us SSHD's policy and guidance documents on SSHD's visa streaming process, SSHD's technical information on how the algorithm system used to screen visa applicants works, and how both have impacted on the Claimants in our case (was asked for this in both our PAP-Compliant letters, in vain).

 

7.               The grounds of challenge state that indemnity costs are sought on the basis that the Applicants have paid $242 for their applications for entry clearance and thousands of pounds for help from lawyers ensuring the requirements of the Immigration Rules were met and yet the Respondent persisted in refusing the applications and maintaining the refusals.

 

8.               In an order dated 10 March 2020, Upper Tribunal Judge McWilliam refused to admit the application for permission to apply for Judicial Review on the basis that it was 25 days out of time, a significant breach for which there was no good reason and in any event there was no arguable error of law in the decision under challenge.

 

9.               The Applicants sought to apply to set-aside the decision of Upper Tribunal Judge McWilliam and renewed their application for permission to apply for Judicial Review on 27 March 2020.

 

10.           On 22 June 2020, the Applicants' Counsel objected to the oral permission hearing going ahead virtually (rather than face to face, referring to virtual hearings having many disadvantages); objected to the time estimate of two hours when the Applicants had consistently sought a full day permission hearing and when there was an outstanding application to set aside the permission decision on the papers. The application to set-aside and a further application to adjourn the oral permission hearing were rejected on the basis that they were invalid (as they were not accompanied by a fee) and in any event set aside was inappropriate when there was a valid application for oral renewal. The SKYPE video hearing was converted to a telephone one using BTMeetMe and the parties were sent the necessary details.

11.           Following a hearing on 23 June 2020, in a decision sent to the parties on 7 July 2020 and again on 8 July 2020, Upper Tribunal Judge Rintoul varied the earlier decision of Upper Tribunal Judge McWilliam to admit the Respondent's Acknowledgment of Service and the order made relating to costs. In regard to the renewed application for permission, Upper Tribunal Judge Rintoul granted permission to apply for Judicial Review for the following reasons:

 

(3)           It is arguable that the respondent acted irrationally in her consideration of the material tending to show the applicant's links with Syria; and, consequently, acted irrationally in concluding that the requirements of the Immigration Rules were not met.

(4)           It is also arguable that, on the particular facts of this case where dependency appears to be accepted, that there was an arguable breach of article 8 in terms of respect for family life.

(5)           It is also arguable that, and given that permission has already been given by the High Court on this issue, that the respondent acted unlawfully in the use of the impugned algorithm to make a decision in this case.

 

12.           In addition, Upper Tribunal Judge Rintoul observed that as the Applicants' daughter-in-law, Monika, is a Polish citizen as well as a British Citizen, she falls within the definition of "EEA national" within regulation 2 of the Immigration (European Economic Area) Regulations 2016 (as amended); such that the Applicants are dependent family members within regulation 7 of the same and entitled to family permits under regulation 12. This was a matter on which it was suggested the Applicants may wish to take advice.

 

13.           Finally, Upper Tribunal Judge Rintoul directed the parties to make submissions as to what directions should be made in this case by close of business on 14 July 2020 (amended from the original order for the same by 7 July 2020 due to a delay in the decision being sent to the parties).

 

14.           On 1 July 2020, the Respondent proposed a draft consent order to the Applicants to settle these proceedings on the basis that the Respondent would withdraw the decisions under challenge, reconsider the applications within four months (absent special circumstances) and pay the Applicants' reasonable costs, to be assessed if not agreed. On the same date, Mr Rosemarine sought confirmation from the Respondent that they would agree to pay for his work at a rate of £500 per hour. No other matters of substance were raised in relation to the proposed terms of consent at that point or at any later date. The Respondent confirmed on 3 July 2020 that the Applicants' reasonable costs would be paid, to be assessed if not agreed and noted that costs are a matter for settlement or assessment after agreement is reached on the substantive issues. No agreement was reached between the parties at this time.

 

15.           The Respondent made written submissions pursuant to the directions of Upper Tribunal Judge Rintoul on 3 July 2020. These briefly set out the history of the claim and the recent correspondence between the parties as to a possible settlement. The Respondent sought dismissal of the application for Judicial Review on the basis that it was academic and reasonable terms had been offered to settle the application. In the alternative, a stay of proceedings was sought to allow the reconsideration offered.

 

16.           On 7 July 2020, the Applicants made an application to admit two witness statements with accompanying documents in support of an application for wasted costs against the Respondent on an indemnity basis.

 

17.           On 8 July 2020, the Upper Tribunal reminded the Respondent that once permission has been granted and the requisite fee paid, the application for Judicial Review can not be dismissed without a hearing and both parties were reminded of the costs consequences of proceeding where a settlement has been proposed and it is open to them to agree that the application be withdrawn for that reason and costs to be determined by a Judge on the papers, or for costs to be assessed if not agreed.

 

18.           In a letter dated 7-13 July 2020, the Applicants' Counsel wrote to the Respondent, with the heading 'Very Urgent Letter Before Further Action', albeit seeking to settle the extant proceedings on the basis of agreement to (or something close to) (i) the Applicants being granted their visas straightaway; (ii) the Respondent's algorithm being discarded or at least suspended pending the substantive decision in JCWI v Secretary of State for the Home Department, and to include something meaningful to the Applicants about achieving something in the national interest through these proceedings; and (iii) indemnity costs, if not agreed, to be determined at a face to face hearing listed for one day in Manchester. A list of reasons are given as to why it was said that costs had been wasted by the Government Legal Department, which included allegations of intimidation; unreasonable and improper conduct, including but not limited to back-dating correspondence, writing directly to the litigants in person and not to their Counsel, disingenuously misleading the Applicants and instructing a barrister who was also a UTIAC Judge.

 

19.           In a letter addressed to Upper Tribunal Judge Rintoul, dated 14 July 2020, Mr Rosemarine sought a stay of proceedings and an order requiring the Respondent to make a fresh decision within one month; as well as a request for indemnity costs. A draft order was included (which had been sent to the Respondent on 6 or 7 July 2020), which goes beyond the confines of this application for Judicial Review and includes contradictory provisions as to costs.

 

20.           A formal application was also made by the Applicants on 14 July 2020, which was re-made on 30 July 2020, to continue their application for Judicial Review; for a stay of proceedings until 1 month after the Respondent made a fresh decision on the entry clearance applications; costs on an indemnity basis and in the event the proceedings are not settled, for the substantive hearing to be listed for a face to face hearing with a 1 day time estimate in Manchester to save costs (due to Mr Rosemarine being based in Manchester).

 

21.           The accompanying documents also sought (i) exemplary wasted costs on an indemnity basis against the Respondent and her agents for 'flagrant and prolonged incompetence' (or indemnity costs on any other basis); (ii) an order for assessment of reasonable costs; and (iii) admission of witness statements from the Applicants and the Interested Parties.

 

22.           The supporting submissions for a wasted costs order include, by way of example as to the matters relied upon (as these are relevant to matters later in this decision), the following (not quoted in full primarily to avoid repetition and quoted using the original formatting used by Mr Rosemarine):

 

"1. The Evidence supporting J Wasted Costs claim is substantial and clear. After c40 years of law, I submit this is a clear cut case of continuing Wasted Costs by SSHD and its agents, for which J seek Indemnity Costs. ...

 

2. SSHD has known, from before the Jaramakani JR Applicants applied for visas, that the Jarmakani JR Applicants have an "automatic right to residence in the UK" as a consequence of their being "direct family members" of an EEA national. SSHD has known it because it is made very clear by SSHD's own internal Guidance for SSHD Staff entitled: "Free Movement Rights: Direct Family Rights of EEA Nationals." That Guidance is itself based upon ECHR's Art 8's right to family, and resulting Immigration (European Economic Area) Regulations 2016 which transpose the Free Movement Directive 2004/38/EC), and ECtHR and ECJ jurisprudence, including Toufiq Lounes v SSHD [2017].

 

SSHD's Continuing "flagrant and prolonged incompetence" has wasted ALL our costs, ab initio

 

3. GLD and SSHD failing to act on this knowledge has wasted ALL our costs, ab initio, from SSHD refusing J's visa applications. This includes the legal costs involved in deciding how to progress this matter; preceding our 1 ^st PAP letter's cover email expressly invoking ECHR's Art 8's right to family. Our ECHR Art 8 Right to Family rights are asserted by us plenitudinously and plentifully in our 2019 JR Permission Bundle ... that SSHD knew throughout (or is deemed to know by court precedent) from receipt of J's visa applications, that Jarmakani parents were "Direct family" entitled to "automatic rights of residence" and thereby automatic rights of entry to the UK. On that basis, SSHD have wasted all our costs de initio from the very beginning of all work done to consider how to show that RFRL was wrongful.

 

Consequently SSHD/GLD should pay indemnity costs for all of work done by us all. A list of authorities will follow. ... SSHD's belated concessions on 1 July 2020 came as a bolt from the blue, in that we were fully expecting to go to a full JR hearing, as SSHD conceded nothing, nothing, nothing, before 1 ^st July 2020 in these proceedings.

 

SSHD's Continuing "flagrant and prolonged incompetence" from its 1 ^st PAP Reply

4. SSHD's agent's reply of 27 Nov 2019 to our 1 ^st PAP does not engage with the right to family. It doesn't even refer to it. Indeed SSHD's agent's reply is so unsatisfactory and in conflict with PAP reply rules, that we immediately twice put SSHD on notice of our seeking Indemnity Costs for it. ... Again, GLD and SSHD failing to act on all this knowledge above has wasted ALL our costs, throughout this litigation, from beginning to end, and continuing. This by itself justifies a Wasted Costs Order on an Indemnity basis.

 

5. ... Mr Chahal personally, has, in our submission, misled Judge Rintoul, by claiming that J continuing with this litigation is, in Mr Chahal's own words, "academic" ...

 

6. Briefly put, SSHD and GLD ... have been negligent in not conceding J's JR cases, at every stage since our 1 ^st PAP letter, or SSHD and GLD have deliberately concealed their knowledge ...

 

7. Yet instead of conceding, SSHD and GLD have implacably fought tooth and nail against granting Jarmakani JR Applicants their visas. Mr Chahal himself labelled J's case as "unarguable" ... We submit that Mr Chahal apparently misled the 1 ^st permission Judge into following Mr Chahal and granting costs against us, wasting our costs by forcing us into very much work to reveal those misrepresentations.

 

8. Apparently misleading and intimidating correspondence from Mr Chahal personally

9. We've previously submitted that Mr Chahal apparently misled us into believing that Mr Chahal had posted us his AOS, whereas none of the Jarmakanis every received such, and I never received such until after 6 April 2020 (2 months late), when it was accompanied by a cover letter apparently back-dated to 14 February 2020. Mr Chahal repeatedly failed to provide any proof of posting or answer to what appears to be substantial back dating, combined with an intimidatory threat of refusal of future visa applications, unless J paid his costs (which Mr Chahal had not been granted on 14 February 2020)

 

...

 

14. GLD's Mr Chahal's continuing negligent and/or unreasonable misrepresentations, meant to damage the Jarmakanis' fundamental interest

15. In Mr Chahal's email to UTIAC of 3 July 2020, Mr Chahal states the following, all of which are, in our submissions, apparently negligence and/or unreasonable misrepresentations meant to damage the Jarmakanis fundamental interest in getting their visas asap, and to obstruct the national interest in the current discriminatory and unlawful Algorithm, either being abandoned or brought into non-discriminatory legality through fair changes to its use.

 

16. The misleading statements are as follows:

 

17. Mr Preet Chahal: "it is clear that this judicial review is now academic in light of the attached consent order". In fact, Mr Chahal's consent order bears almost no relation to the result and orders sought in any of Jarmakanis 3 PAP letters and JR Bundle ...

 

18. Mr Preet Chahal: "The Applicants ... has indicated that settlement depends on whether an hourly rate of £500 per hour is accepted". In fact, this was never said by the Applicants. On the contrary, this hourly rate is quoted in The Applicants Agreements with their Counsel. Seeking SSHD's payment of it for the reasons given to SSHD is reasonable in itself, and additionally a negotiations' trial balloon (opening trail balloon to test your willingness to settle.) But Mr Chahal has preferred to weaponize it.

 

...

 

23. To encourage a fast settlement of all remaining issues, and as proof of good will, Jarmakanis are prepared, at this stage, to settle for Indemnity Costs instead of Exemplary Wasted Costs on an Indemnity Basis. But they will withdraw their preparedness to make this concession, if the matter goes ahead to a full JR hearing. The Jarmakanis and I have tried to be constructive, reasonable and fair, at all stages.

 

23.           On 28 July 2020, this application for Judicial Review was struck out for failure to pay the continuation fee; albeit this was an administrative error and overturned with the proceedings reinstated (see below).

 

24.           In an order dated 6 August 2020, Upper Tribunal Judge Rintoul dealt with matters arising since the grant of permission, making the following decisions:

 

1.              The application for judicial review, struck out on 28 July 2020, is reinstated.

2.              The application to adduce witness statements is rejected.

3.              The application for a stay is refused.

4.              The application for the proceedings to be transferred is refused.

5.              The application for indemnity costs is refused.

6.              Unless a signed consent agreement disposing of this application, save as to costs, is served within 10 working days of the issue of this order, this application will be listed for hearing without further notice and without further directions, it not now being appropriate to make the usual case management directions.

7.              Any communication from the parties must be in 12pt type (no larger or smaller) without the use of underlining, bold or italics unless used to identify a cited case or within the heading of notepaper. The Upper Tribunal will reject without consideration any emails, letters, documents or submissions which do not comply with this direction.

 

25.           The reasons given for these decisions included, so far as relevant, the following:

 

1. ...

2. It is noted that this action is now entirely academic. The respondent has offered to reconsider the applications for entry clearance and, it appears, she is no longer using the algorithm impugned in the grounds of challenge. There is now no prospect of the Upper Tribunal making any order in this case, as the applicants' have achieved all that they could reasonably have achieved. There is no basis on which it could realistically be argued that a mandatory order could be made ordering that entry clearance be granted, nor any purpose served in a declaration or other order. The application is thus academic, and the sole remaining issue is costs. While it is noted that the applicants do not consider that the offer to reconsider is sufficient, an order quashing the decisions is the only remedy (apart from costs) that could realistically have been ordered; and, that would have been some time hence from the date on which the offer to reconsider within 3 months was made.

3. The parties are reminded of their duty to assist the Upper Tribunal with the overriding objective to deal with cases fairly and justly (rule 2, Tribunals Procedure (Upper Tribunal) Rules 2008).

4. No purpose is now served by staying proceedings or in taking further evidence as costs are the only remaining issue. Accordingly, these applications are refused.

5. The usual order in cases such as this where a reasonable offer to settle has been made is for the application to be withdrawn given that agreement and for the respondent to pay the applicant's reasonable costs to be assessed if not agreed.

6. The applicants have behaved unreasonably in requesting that an order for costs be made on an indemnity basis even before the action is brought to an end still less is it reasonable to delay it to get an agreement as to the hourly rate applicable for counsel.

7. The applicants appear to be unaware that, in continuing to litigate, they are at risk of the respondent's costs incurred from the date of the offer to be set against any award of costs to them. Further, were the matter to proceed to a substantive hearing, these would almost certainly outweigh the costs awarded to them, if any, given that their conduct in pursuing this action could be seen as unreasonable. Further, any net costs awarded against them would become a litigation debt for the purposes of paragraph V.14A of the Immigration Rules. The effect of this would be that any application for a visit visa would normally be refused until it was paid.

8. ...

9.              The parties are again reminded of their duty to assist the Upper Tribunal. That includes presenting documents in a coherent and legible form; the Upper Tribunal is not assisted in any way by the use of italics, bold type or typefaces which vary in font size or use fonts greater than 12 point.

 

26.           On 10 August 2020, Mr Rosemarine wrote to the Respondent with the heading '2 ^nd Very Urgent Letter Before Further Action' stating that until visas are received by the Applicants, the real dispute is not settled and unless agreement was reached within four working days (including the date of the letter) to the visas being granted, an application would be made to transfer proceedings to the High Court and amend the grounds of challenge. The letter goes on to make a request for a family permit to be issued under Regulation 12 of the Immigration (European Economic Area) Regulations 2016 although it is acknowledged that no formal online application had been completed for the same, as would normally be required.

 

27.           On 17 August 2020, the Applicants made a formal application to amend their grounds of claim, seeking a remedy of either a grant of the entry clearance applications or a legally valid refusal forthwith; and damages for breaches of the Equality Act 2010 and/or Article 8 of the European Convention on Human Rights for failure thus far to make a lawful decision on the entry clearance applications. The applications were made on the basis that the Applicants had already informed the Respondent on 10 August 2020 that the real dispute between them was not settled; the withdrawal of the decisions under challenge not being enough to bring proceedings to an end. Further applications were made for the substantive hearing to be listed in Manchester where Mr Rosemarine is based before a non-Field House Judge (given previous complaints of apparent bias against a Judge in Field House) and for Upper Tribunal Judge Rintoul to be recused because of apparent bias.

 

28.           In an order dated 18 August 2020, Upper Tribunal Judge Kopieczek refused the further applications made by the Applicants, summarising and endorsing the decisions and explanations given by Upper Tribunal Judge Rintoul in his decision dated 6 August 2020. The application to amend the grounds of claim was refused as was the application to transfer the proceedings to Manchester; and so far as necessary, the application for Upper Tribunal Judge Rintoul to be recused was refused because the allegation of bias was wholly without merit and in any event, as the Judge granting permission, he would not deal with the substantive hearing. Upper Tribunal Judge Kopieczek further stated:

 

...

10.           In case it is not already clear from Judge Rintoul's decision dated 6 August 2020, the applicants should be in no doubt about the consequences for them in terms of costs, in pursing this claim to a substantive hearing in circumstances where the claim is now academic. The respondent's costs are likely to be substantial.

11.           The same applies in the event that all that is considered at the substantive hearing is costs. A hearing is not appropriate only to consider the matter of costs. If that is all that is considered at the hearing, the applicants should not consider themselves immune from an adverse costs order, because costs can readily be dealt with on the basis of written submissions.

12.           The applicants are also reminded of paragraph 7 of Judge Rintoul's decision dated 6 August 2020. The application notice to which this present decision relates, does not accord with his direction in terms of font size and bold type.

13.           In the event that there is no hearing, any written costs submissions from either party must not exceed two sides of A4, and Judge Rintoul's paragraph applies equally in that respect.

 

29.           On 18 September 2020, the Applicants sent what was described as a seventh pre-action protocol letter to the Respondent about the continuing failure to grant visas following a further request for information to reconsider the applications and stating that the application for Judicial Review would be pursued until the visas are granted.

 

30.           On 23 September 2020, the Respondent indicated to the Applicants that their applications for entry clearance had been granted with practical arrangements in process for the issue of the visas.

 

31.           On 25 September 2020, the Applicants wrote to the Respondent with a draft consent order to settle this application for Judicial Review. It asserted that the Applicants are entitled to compensation from the Respondent but in the interests of being ever reasonable and avoiding a hearing, this is not pursued in the form of consent. The terms proposed were as follows:

 

UPON the Respondent granting, on 23 September 2020, the Applicants' visa applications fully filed with the Respondent on 10 August 2019, and the Respondent conceding the Applicants' Judicial Review suit in its entirety, and that the Judicial Review proceedings were rightfully brought, and continued to date;

 

BY CONSENT, it is ordered that:-

 

0.              The substantive hearing listed for 2 October 2020 be vacated.

1.              The Respondent's refusal decisions of 23 September 2019 are hereby quashed, and Applicants do have leave to withdraw the above-numbered claim for judicial review.

2.              The Respondent do pay the Applicants' reasonable costs of this judicial review, to be assessed in detail if not agreed, assessment to be by a Manchester Costs Judge at a face-to-face oral hearing, listed for 1 day (Jarmakanis' costs for which hearing itself to be paid by Respondent.)

[Explanation: Both Applicants' and both Interested Parties' Barrister, the Family's only immigration lawyer for c8 years, consulted and deeply involved at all stages in this heavily documented case since September 2019, is Manchester based, as are 3 witnesses to work done. The Manchester Barrister is in a high risk Coronavirus category after life-threatening condition, is old (58 in October 2020), and has been advised not to travel outside of Manchester. He does not drive. It would jeopardize his life for the assessment to be outside Manchester.]

3.              The Applicant's claims for wasted costs to be paid by the Respondent on an indemnity basis are to be assessed as above, if not agreed.

 

32.           A skeleton argument and bundle of documents was filed on behalf of the Applicants on 28 September 2020 in preparation for the hearing listed on 2 October 2020 (later updated on 1 October 2020), including a background summary of the case, continued allegations of misconduct by the Secretary of State and/or her legal representatives and in the absence of agreement between the parties to settle the matter, a draft order of what was, at that date, sought by the Applicants. The draft order was in the following terms:

 

UPON the Respondent granting, on 23 September 2020, the Applicants' visa applications fully filed with the Respondent on 10 August 2019, and the Respondent conceding the Applicants' Judicial Review suit, the Judicial Review proceedings having been rightfully brought, and continued to date;

 

It is ordered that:-

1.              The Respondent's refusal decisions of 23 September 2019 are both hereby quashed.

2.              The Respondent do pay the Applicants' reasonable costs of this judicial review, to be assessed in detail if not agreed, assessment to be by a Manchester Costs Judge at a face-to-face oral hearing, listed for 1 day (Jarmakanis' costs for which hearing itself to be paid by the Respondent.)

[Explanation: Both Applicants' and both Interested Parties' Barrister, the Family's only immigration lawyer for c8 years, consulted and deeply involved at all stages in this heavily documented case since September 2019, is Manchester based, as are 3 witnesses to work done. The Manchester Barrister is in a high risk Coronavirus category after life-threatening condition, is old (58 in October 2020), and has been advised not to travel outside of Manchester. He does not drive. It would jeopardize his life for the assessment to be outside Manchester.]

3.              The Applicants' claims for wasted costs up to, and including today, all be paid by the Respondent on an indemnity basis, and are to be assessed as above, if not agreed.

4.              The Respondent do pay the Applicants £10,000 on account within 1 month towards the Applicants' legal costs, under Rule 10(10).

[The Applicants' lawyer has done hundreds of hours of work in this case of national importance - the first to be given permission to JR the Respondent's Algorithm, necessitating very great research, because of the Respondent's refusals to provide Applicant with any of Respondent's Algorithm documentation.]

5.              The Respondent never again hire a UTIAC Judge who sits in Field House, London, for any proceedings there.

[In the national interest, but not essential for the Jarmakanis].

 

33.           By way of e-mail dated 30 September 2020, the Applicants appeared to apply for the hearing listed at 10am on 2 October 2020 to be moved to the Manchester High Court if the Respondent had not by then signed a consent order in relation to these proceedings. As above, a previous application to transfer these proceedings to Manchester was refused by Upper Tribunal Judge Kopieczek in a decision dated 18 August 2020 and no new or further reasons were given for the repeat application at this very late stage; nor were any reasons given as to why a remote oral hearing was not appropriate or accessible to the parties or why a face to face hearing was required (particularly in circumstances where Mr Rosemarine claimed to be vulnerable and a remote hearing offers much greater protection against the spread of Covid-19).

 

34.           I refused that application in a decision dated 30 September 2020 for these reasons and because the hearing was in any event academic save as to costs and wholly unsuited for an oral hearing at all (whether remotely or in person) and the pursuance of the same was unreasonable. The parties were again reminded of their duty to assist the Upper Tribunal with the overriding objective and that in this case, there was no good reason why the application for Judicial Review could not be settled by consent with provision for assessment of costs on the basis of written submissions if this could not be agreed. The parties were directed to file written costs submissions, accompanied by a schedule of costs by no later than midday on 1 October 2020 for the matter of costs to be determined at a hearing if that remained necessary and for summary assessment of costs to be undertaken.

 

35.           On 30 September 2020, the Respondent, referring to the order above, sought confirmation from the Applicants as to whether they were agreeable to a withdrawal of proceedings with the issue of costs to be determined on the basis of written submissions.

 

36.           On 30 September 2020, the Applicants filed an application notice with the Upper Tribunal. On its face, the form failed to identify what order was sought or why, referring only to three of the eight pages attached to the application. Within those pages, it is stated that the Applicants welcomed and agreed with the comments in my decision dated 30 September 2020 that "... a substantive hearing on 2 October 2020 is wholly inappropriate to resolve the only outstanding issue of costs between the parties and that there is no good reason for the matter not to be settled by consent in the usual way, for the application to be withdrawn and agreement for the Respondent to pay the Applicant's reasonable costs to be assessed, if not agreed." albeit my decision continued " In the alternative, for the application to be withdrawn and costs (including any application for wasted costs) to be determined on the papers by an Upper Tribunal Judge on the basis of written submissions ..." .

 

37.           It was further stated that the Applicants had, on 29 September 2020, signed two different draft consent orders and sent them to the Respondent; which she failed to sign. The Applicants maintained that it was the Respondent acting unreasonably in not signing either consent order and that they have repeatedly sought to avoid the need for any hearing. The Applicants requested that whether or not the consent order(s) are agreed, the hearing be vacated on the basis that nothing useful can come out of it. There was however no proposal as to how this application for Judicial Review could be concluded without a hearing in the absence of an agreed consent order and no other suggestion or request made as to what should happen if the hearing were to be vacated.

 

38.           The first consent order proposed was in the following terms:

 

UPON the Respondent granting, on 23 September 2020, the Applicants' visa applications fully filed with the Respondent on 10 August 2019, and the Respondent conceding the Applicants' Judicial Review suit and Applicants' reasonable costs,

 

BY CONSENT, it is ordered that:-

 

0.              The substantive hearing listed for 2 October 2020 be vacated.

1.              The Respondent's refusal decisions of 23 September 2019 are hereby quashed, and Applicants do have leave to withdraw the above-numbered claim for judicial review.

2.              The Respondent do pay the Applicant's reasonable costs of this judicial review, to be assessed in detail if not agreed, assessment to be by a Manchester Costs Judge at a face-to-face oral hearing, listed for 1 day (Jarmakanis' reasonable costs for which hearing itself be paid by the Respondent.)

 

39.           The second consent order signed by the Applicants proposed the following terms:

 

UPON the Respondent agreeing to withdraw her decisions dated 23 September 2019 refusing entry clearance as visitors and agreeing to reconsider those decision (sic) within 4 months of this order being sealed (absent special circumstances);

 

BY CONSENT, it is ordered that:-

 

1.              The Applicants do have leave to withdraw the above-numbered claim for judicial review.

2.              The Respondent do pay the Applicant's reasonable costs of this judicial review, to be assessed if not agreed.

 

40.           There was no explanation at all of why two alternative forms of consent were proposed which contained materially different terms. The second consent order was essentially that offered by the Respondent on 1 July 2020 and rejected at the time and was, by 29 September 2020, out of date and its terms had been overtaken by subsequent events. The Applicants offered no reason as to why the terms were now, nearly three months later, acceptable or appropriate whereas there was no agreement to the same when originally proposed.

 

41.           Finally, the documents simply state it will take weeks to submit details of the costs of hundreds of hours work done on this application over more than a year and given that the documentation is considerable, the claim is not appropriate for summary assessment of costs.

 

42.           In a decision dated 1 October 2020, I refused the Applicants' formal application to adjourn the hearing listed for 2 October 2020 for the reasons already given on 30 September 2020 and because the only issue remaining having been costs since 7 July 2020, there was no reason as to why the parties had not fully prepared to deal with that sole issue at the hearing, forced by their unreasonable failure to agree a form of consent. The suggestion that there was insufficient time within that period was rejected and the lack of compliance with the procedural rules and Upper Tribunal directions was noted.

 

43.           On the morning of the substantive hearing, the Applicants lodged an application notice applying for all of their costs of this application for Judicial Review to be paid for by the Respondent for the reasons to be given separately by Counsel. This application was wholly unnecessary, the Applicants having originally sought costs as part of the remedy in their initial claim and in circumstances where they had also made multiple applications in relation to costs already.

 

44.           The submissions on behalf of the Applicants from Mr Rosemarine set out what are described as 'fundamental errors of law' by Field House Immigration Judges. These included the classification of this application for Judicial Review as academic since the Respondent's offer to withdraw and reconsider the decision in July 2020, on the basis that mere withdrawal was not sufficient in circumstances where the Applicants sought the grant of their applications for entry clearance as visitors, indemnity costs and disclosure of the 'discriminatory algorithm policy and guidelines documents' which it is said are in the national interest and of national importance. Further, the withdrawal of the decision under challenge was submitted not to have any impact on the Respondent's continuing breach of the Applicants' right to respect for family life under Article 8 of the European Convention on Human Rights, the Immigration (European Economic Area) Regulations 2016 and the Equality Act 2010 which it is said are fully pleaded aspects of this claim; together with a continuing breach of the Respondent's own guidance on the time taken to determine visa applications. On behalf of the Applicants it was submitted that the Respondent unreasonably sought further evidence to determine the applications for entry clearance and that if the claim was truly academic, then further proceedings would have been needed to deal with this and other matters.

 

45.           Mr Rosemarine additionally submitted that both he personally, as well as the Applicants, had a legitimate expectation of the reasonable costs of this application being paid by the Respondent who is estopped from withdrawing the previous offer to do so. Mr Rosemarine asserted that it would be unjust, unreasonable and unfair to deprive the Applicants of legal fees paid and owing; with detrimental reliance on the Respondent's offer by the Applicants and by Mr Rosemarine personally (who relies on medical evidence as to his own ability to work on this application and who states he did not chase fees owed to him and declined work from other clients with confidence that the Respondent would be paying for the work he had undertaken on this application).

 

46.           Finally, it is asserted that there is an inequality of arms in this case because the Respondent has had a greater number of lawyers working on this case than the elderly, foreign, non-English speaking Applicants have had, relying only on one elderly Counsel.

 

47.           The submissions on behalf of the Applicants are accompanied by what is described as a schedule of costs, but is in fact nothing of the sort. The document contains a list of reasons as to why in excess of 112 hours of work was undertaken by Mr Rosemarine on this application, requiring his particular combination of expertise, legal and linguistic skills in what is said to be a very complex and ground breaking claim. There follows a list of broad headings of work and estimates of the time spent on each by Counsel, with in excess of 93 hours prior to 8 July 2020 (a significant part of which was pre-action) and in excess of 20 hours since 8 July 2020, including further pre-action correspondence. Counsel's hourly rate claimed is £300, although he has been instructed at a rate of £500 per hour. Including court fees of £154, the total claim for costs is £33,754. Finally, it is simply stated that the Applicants can not afford to pay the Respondent's costs and if ordered to do so, they would be prevented from visiting the United Kingdom, defeating the purpose of the application for Judicial Review.

 

The Applicants' position

 

48.           In summary, as set out in the updated skeleton argument filed on 1 October 2020, the Applicants stated that they continued to object to a substantive hearing on 2 October 2020 and have repeatedly tried to settle this application for Judicial Review by consent once their principal goal of visas being granted had been achieved and since then, the Respondent has acted unreasonably in refusing to agree to the form of consent offered. The Applicants continue to seek their reasonable costs on an indemnity basis from 27 November 2019 (the date of the Respondent's first pre-action response) up to and including the hearing on 2 October 2020 and reasonable costs for the period 23 September 2019 to the date on which costs are paid. The Applicants assert that they cannot afford any further costs without the Respondent paying towards the necessary costs of detailed assessment and therefore seek payment of £10,000 on account towards their much greater reasonable costs.

 

49.           The Applicants' skeleton argument also alleges bad faith, flagrant and prolonged incompetence, a breach of duty of candour and conspicuous unfairness amounting to an abuse of power against the Respondent and/or her legal representatives. The Applicants continue to assert that their original applications for entry clearance provided sufficient evidence to show that they fully complied with the requirements of the Immigration Rules (albeit later it is accepted that because of the further work in response to a request for more evidence, the applications were granted), the request for further information prior to the grant of visas was unnecessary and pursued in bad faith, designed to set a trap for the Applicants and disrupt the preparation needed for this application and it was reasonable to pursue this application for Judicial Review until visas were granted, the Respondent being wrong to state previously that the Applicants had already been offered all they could expect to achieve from these proceedings. It is said that if the Applicants had previously settled in July 2020, they would have immediately had to bring a further application for Judicial Review on almost identical legal grounds.

 

The Respondent's position

 

50.           In summary, the Respondent's position is that an entirely reasonable offer of settlement was made to the Applicants, originally on 1 July 2020 and formally renewed on 15 September 2020 (with limitation on costs to 1 July 2020 only). The terms of the draft consent order provided the Applicants with the relief to which they would be entitled if they were ultimately successful in this application for Judicial Review, together with payment of their reasonable costs (up to the date of offer of settlement). The Applicants have rejected the offers made and made repeated applications for wasted and/or indemnity costs, even after the refusal of the application for indemnity costs on 6 August 2020.

 

51.           The Respondent withdrew the decisions under challenge and reconsidered the applications made; with the Applicants being informed on 23 September 2020 that the applications would be granted (the physical visas themselves having subsequently been issued).

 

52.           The Respondent submits that the Applicants' conduct of this application for Judicial Review has been unreasonable to such an extent that there should not be a costs award in their favour at all and in addition, that the Respondent should be awarded her costs from the date of offer of reconsideration of the decisions under challenge on 1 July 2020. Finally, the Respondent sought again on 30 September 2020 to resolve this application by consent with provision for the only outstanding issue of costs to be determined on the papers following written submissions by the parties, but this was refused.

 

53.           The following factors are highlighted by the Respondent as to the Applicants' unreasonable conduct throughout these proceedings. First, the Applicants refused to accept a reasonable offer as to costs, instead persisting in multiple applications for wasted and/or indemnity costs and despite guidance from the Upper Tribunal being given as to the reasonableness of the offers made.

 

54.           Second, the Applicants made multiple applications to the Upper Tribunal and ignored orders in response to them.

 

55.           Third, the Applicants made costs applications which were entirely unfounded. The Respondent's conduct has been entirely proper throughout these proceedings and does not form any basis for an award of indemnity or wasted costs. In particular, the Applicants' assertion that the Respondent's failure to recognise rights under the Immigration (European Economic Area) Regulations 2016 amounted to "flagrant and prolonged incompetence" formed no part of the Applicants' application for Judicial Review.

 

56.           Fourth, the number and manner of applications made by the Applicants caused the Respondent to incur significant additional costs.

 

57.           Fifth, even prior to the Applicants' grant of permission, their conduct justified an award of costs against them. The grounds of challenge were diffuse, not in good order and repetitive. The application for Judicial Review was lodged out of time, with attempts being made to issue in the High Court twice and with no good reason for the delay. These matters all increased the Respondent's costs in dealing with this application.

 

58.           Sixth, the Respondent is concerned that the Applicants' Counsel claims to have worked "round-the-clock" on this case since September 2020 (presumably 2019), suggesting an unreasonably and disproportionately high costs bill, only to be increased by the repeated requests for a one day hearing for detailed assessment of costs in relation to an application which did not proceed beyond the permission stage (save as for costs).

 

59.           Seventh, the Applicants have inexplicably focused throughout these proceedings on obtaining indemnity costs from the Respondent in circumstances where there is nothing out of the ordinary in terms of the Respondent's conduct which would justify any such order.

 

The hearing

 

60.           The substantive hearing was held remotely, by video, using Skype, to take precautions against the spread of Covid-19 and as the sole remaining issue of costs should have been a relatively short and straightforward issue which could be determined by remote means (or much more appropriately, on the papers as no substantive hearing at all should have been required in this claim). The file contained all of the documents in paper format, with electronic copies of the most recent documents and bundle also filed and available electronically. The parties confirmed that the Upper Tribunal had all of the relevant documents, as did they.

 

61.           The Applicants have, on a number of occasions, including on the day of the hearing, objected to the use of Skype for a remote video hearing and maintained a request for a full day face to face hearing listed in Manchester for the convenience of their Counsel. Formal applications for the same were made repeatedly and refused by the Upper Tribunal on every occasion (as detailed above). The Respondent did not object to the means of hearing.

 

62.           Just prior to the start of the hearing, the Applicants stated that they had not received the Skype invite for the hearing. This was sent to the e-mail address on record for Mager Jarmakani initially on 18 August 2020 and resent on the morning of the hearing. Those details must have been received as he and Mr Rosemarine (as direct access Counsel) were present remotely using the log in details provided.

 

63.           At the outset of the hearing, Mr Rosemarine stated that he was unable to join the hearing by video on Skype, for reasons which he did not fully elaborate on and was therefore dialling in by telephone instead. I offered a short adjournment and assistance from the Upper Tribunal to allow Mr Rosemarine to join the video call if there were technical difficulties that could be resolved, which was declined; as was a similar offer just prior to the adjournment over lunch.

 

64.           In the absence of any specific reasons given to me at or before the hearing (although there was some reference to reasons having been given on some unspecified earlier date to the Upper Tribunal), in light of the earlier refusals of the request for a face to face hearing and given that all parties were able to log in either by phone or video; the hearing proceeded as listed.

 

65.           During the course of the hearing, there were occasional difficulties in Mr Rosemarine and I hearing each other which were raised at the time by those unable to hear and with anything missed being repeated immediately following any issue being raised. I am satisfied that all such issues were dealt with sufficiently at the time. There are small or short parts of the dialogue not fully picked up by the recording equipment in court situated away from where I was sat, but I am satisfied that I was able to hear all of the submissions made and have my own written record of proceedings reflecting that.

 

66.           Shortly before the adjournment for lunch and again just afterwards, there were significant difficulties in hearing Mr Rosemarine to the extent that investigations were undertaken to find an alternative means to continue the hearing whereby everyone could hear each other sufficiently. In the end, it is understood that an alternative phone line was used by Mr Rosemarine to connect to the hearing and matters then proceeded without any further significant difficulties. Again, submissions were repeated as needed and clarification obtained on matters that had not previously been heard in full. The hearing lasted for almost a full court day solely on the issue of costs, but no additional matters in relation to the audio quality or substantive matters that had not been covered were raised in the time available at the end of the hearing.

 

67.           After the hearing, on 4 October 2020 and re-sent on 5 October 2020, Mr Rosemarine e-mailed the Upper Tribunal with a complaint about the quality of the hearing stating that many times he could neither hear myself nor Ms Thelen and that I had stated the same during the hearing. It was suggested that a solution to the problems would be proposed within a few days and in the meantime, a request was made not to finalise this decision. Other matters of complaint were raised in this correspondence which are not relevant to the hearing itself or substantive matters in issue within this application such that I do not address them here. Similarly, Mr Rosemarine sent a further e-mail on 6 October 2020 referring to the quality of the audio during the hearing and attaching a one page summary document as to why the Applicants distrusted the Home Office to assist the Upper Tribunal and the Respondent. This document raised nothing further of substance relevant to the application for Judicial Review which had not already been raised in oral submissions.

 

68.           There was no further communication on the issue of audibility of proceedings during the hearing until much later in relation to a transcript of proceedings (which I return to below), nor has there ever been any proposed solution that I was asked to await. I am satisfied that the issues with the audio did not go beyond those already addressed above and rectified at the time during the hearing, such that no further action on this is required.

 

69.           On recommencement of the hearing in the afternoon, Mr Rosemarine stated that there had been a dramatic development over the lunch adjournment, that he had received a short whatsapp message from one of the Interested Parties which he sought permission to play or permission for him to repeat the contents of the same to the Tribunal. The message was said to concern the reasonableness of the Applicants' refusal to sign the consent order proposed in early July 2020. This was further to an application being made at 13:40, by Mager Jarmakani (in the name of Hisham Jarmakani) to allow Mager Jarmakani to speak during the hearing. There was no explanation of the purpose of the application, whether it was to give evidence or for some other reason; there was no accompanying written statement; no explanation as to the subject matter of what was to be covered and no explanation at all let alone any good reason for the timing of the application during the substantive hearing; nor why the application was any different to those previously made to rely on written evidence from Mager Jarmakani (and others) which had been refused (as set out above). The formal application had not reached me by the time the hearing had resumed, nor had it been received by Ms Thelen or those instructing her. The application was then forwarded to myself and the Respondent during the hearing.

 

70.           I refused the application on the basis that it consisted only of a single sentence requesting permission to give evidence with no reasons whatsoever, no written statement and no indication of why the application was made only during the course of the substantive hearing. Mr Rosemarine however continued to pursue a request for the Interested Party to be heard, or to instead play or read out the further evidence from a whatsapp message and referred to witness statements having been given previously (albeit permission had previously been refused to rely on the same). The application had already been refused, the further submissions were inappropriate and Mr Rosemarine was asked to continue with the substantive matters in the hearing.

 

71.           Also during the course of the hearing, Mr Rosemarine made submissions that I would inevitably be influenced by the earlier decisions of two other Upper Tribunal Judges; neither of whom, he alleged, had considered the Applicants' position. The inference appeared to be that either I was biased or somehow not approaching this hearing in an impartial way, such that I clarified with Mr Rosemarine whether there was any such specific accusation or any application for me to recuse myself. Mr Rosemarine stated that he did not say that I was biased or impartial, only that we are all influenced by the decisions of others and in this case, those others did not consider the Applicants' side of the question and were deprived of their right to be heard, which has become a major issue. Mr Rosemarine's submissions were entirely unclear, unsupported and inappropriate; but on the basis that he expressly confirmed no formal concerns of bias or impartiality were being made and no application for recusal, the hearing continued.

 

Submissions on behalf of the Applicants

 

72.           At the outset of the hearing, I summarised my understanding of the issues in the proceedings, being one of costs only given that the substantive matters in the claim were, as previously identified by Upper Tribunal Judge Rintoul and Upper Tribunal Judge Kopieczek, entirely academic. Mr Rosemarine opened his submissions by stating that I had totally misconceived the issues; that the claim is not academic even as at the date of hearing because the Applicants had still not physically received their visas. Mr Rosemarine proceeded to state that the Upper Tribunal was both complacent and complicit in the Home Office breaches and submitted "Ma'am, there's a deadly virus in your Tribunal. It's highly contagious. Your Tribunal has caught it from the Home Office ...", essentially suggesting that I had been infected with a virus spread from my colleagues who had caught it from the Home Office. That was a wholly unprofessional and unnecessary way to begin what should have been impartial, objective legal submissions on the issue of costs and a statement made in thoroughly poor taste given the Covid-19 pandemic.

 

73.           I pause here before returning to the content of the submissions made to deal with a discrete point which arises as to the submissions recorded above. Following the hearing, there was a submission by Ms Naik QC on behalf of Mr Rosemarine to remove the latter part of the paragraph immediately above from the judgment, which I decline to do. The request was made in the context of written representations made in response to a notice to show cause addressed to Mr Rosemarine which followed the circulation of an initial draft judgment provided on an embargoed basis for the usual corrections and to allow for a full response to the notice to show cause. The request was made on the basis that Mr Rosemarine had not made any such submission about a virus but instead had read from a script which said "SSHDS's Jarmakani-visa-virus - a virus that stops Jarmakranis' c16+ year old attempt to see their sons" and suggesting that Mr Rosemarine was therefore either misheard or misunderstood due to the audio issues in the hearing and he was not given an opportunity to complete this submission. These representations were maintained despite Mr Rosemarine and those representing him not taking the opportunity given to them, at their request, to listen to the audio recording to check the factual accuracy of the approved transcript which recorded this submission.

 

74.           I am satisfied that there were no audio difficulties around this point in the hearing such that the submission was in any way misheard (and as above, I am overall satisfied that at points where there were difficulties in audibility, these were immediately resolved during the hearing). This judgment is drafted on the basis of what I heard during the substantive hearing, the accuracy of which is supported by an approved transcript of the hearing and the audio recording from which it was transcribed. The submission actually made by Mr Rosemarine was that recorded in paragraph 70 above, it was not misheard or in any way misunderstood and for the reasons which are self-evident, was wholly inappropriate and unprofessional. In these circumstances, the request to remove part of a draft judgment was inappropriate and without any proper evidential foundation.

 

75.           On the actual matters arising in the case, Mr Rosemarine submitted that the claim was not academic because although the original decisions had been withdrawn, achieving the first remedy sought, the visas had not yet physically been issued such that the second remedy sought had not been fully achieved (albeit once the decision to issue had been communicated the Applicants immediately sought to settle proceedings). The third remedy sought was for indemnity costs because the Respondent had failed to address the errors in the decisions made at pre-action stage. The final remedy sought was for an interim order for disclosure, in the national interest, to bring down the Respondent's hostile and discriminatory algorithm. The Applicants preceded the JCWI in that regard and were the first parties to pursue and obtain permission to challenge the algorithm. Mr Rosemarine confirmed that no interim order for disclosure had been made and stated that it was still important because the algorithm breached the Equality Act 2010 for which the Applicants were entitled to damages and the documents about it to pursue such a claim.

 

76.           Mr Rosemarie submitted that this application for Judicial Review was not academic in early July 2020 when the Respondent offered to reconsider the decisions under challenge because only a long period to reconsider the decisions in the future was offered which "was worse than worthless to the Applicants and would have been idiocy, madness and crazy to agree to". The Respondent's offer was said to be cynical and was a gross abuse of the Respondent's powers, as well as abuse by her legal advisers in contacting the litigants in person about this behind Counsel's back. Mr Rosemarine suggested that if the consent order had been agreed in July, the Applicants would have to immediately begin a fresh application for Judicial Review on the basis of delay, that the Respondent had not issued the visas that the Applicants were entitled to in the twelve months since the applications were made.

 

77.           It was further submitted that if the consent order had been agreed in July, there was no reasonable expectation that the visas would have been granted, even though they have since been granted. The reasons given for the Applicants to suspect a further refusal were that the algorithm challenged was discriminatory, it was still in place and systemic discrimination by the Respondent's staff still existed, with institutional bias and discrimination against Syrians; all of this being in the context of the Respondent accepting that she was operating a hostile immigration environment. In addition, Mr Rosemarine referred to the decisions under challenge which stated that future applications would be refused but could not explain the relevance of that to a reconsideration of the outstanding applications once those decisions had been withdrawn (which they had been by the time of the hearing).

 

78.           Mr Rosemarine also submitted that the visas were granted because of the pressure of the ongoing application for Judicial Review but with no reasons given for the assertion, only repeated references to the Respondent being unreasonable in seeking further evidence before a new decision was made and in seeking any costs in this case. The relevance of these points were said to be that it would have been unreasonable to sign the proposed consent order in circumstances where a further immediate application for permission to apply for Judicial Review would have been necessary against the request for further evidence of the failure to give a lawful reason for refusal (albeit the applications had not at that stage been refused on reconsideration, nor were they ultimately refused when the decisions were taken).

 

79.           I asked Mr Rosemarine on what basis the Upper Tribunal could or would have granted a mandatory order for the issue of entry clearance to these Applicants, as originally sought. He stated that this is High Court litigation and the application will definitely be sent back to the High Court, suggesting this may be on appeal but the Applicants are seeking to settle matters before that. The question was repeated, to which Mr Rosemarine repeated his earlier submissions on his view of the absurdity of the Applicants agreeing to the draft consent order proposed in early July 2020. On the third attempt to identify the basis upon which the Applicants claim that a mandatory order would have been granted in this application for the issue of entry clearance if the substantive application for Judicial Review proceeded, Mr Rosemarine asserted that 'we' have proved that the refusals were in breach of Human Rights and the Upper Tribunal is bound by the EEA Regulations and the Equality Act as well as the provision of entitlement to a practical remedy, where there is a right, there is a remedy.

 

80.           I sought confirmation from Mr Rosemarine that the most recent written submissions on costs contained the entirety of the Applicants' claim for costs, which was for the Respondent to pay their reasonable costs of this application. Mr Rosemarine stated that the Applicants sought their reasonable costs, including indemnity costs on an appropriate basis but that they have not sought all the indemnity costs they are entitled to. Upon a further request for clarification, Mr Rosemarine stated that it is only reasonable costs now being sought with the aim of obtaining a costs award in the Applicants' favour, although he continued to maintain that they were entitled to indemnity costs.

 

81.           As to the question of whether the Applicants' conduct in refusing to agree the consent order in early July 2020 was reasonable, Mr Rosemarine reiterated the practical difficulties, time and money spent by the Applicants making their applications for entry clearance; that they were denied a visit to their family in 16 years and 11 years respectively for each Applicant and were exasperated that they had not been granted entry clearance and that the Respondent was proposing a long period of time before acknowledging that they were entitled to visas.

 

82.           Mr Rosemarine submitted that all of the work done could be undone now by a very late application by the Respondent to seek £6000 in costs contrary to their previous offer to pay the Applicants' reasonable costs. I reminded Mr Rosemarine that although the amount claimed had only recently been available, the possible adverse costs consequences of pursing the application had clearly been set out by Upper Tribunal Judge Rintoul and Upper Tribunal Judge Kopieczek. The response to this was that Upper Tribunal Judge Rintoul did not disclose his knowledge of his colleague Judge representing the Respondent which evolved into a submission that the grant of permission by Upper Tribunal Judge Rintoul was tainted by apparent bias and therefore was of no consequence. Mr Rosemarine then stated it would not be of no consequence but there would be complex and serious legal consequences (without identifying any) and confirmed, when invited to clarify, that despite the submission, he did not intend or want to undermine the decision in the Applicants' favour to grant permission to apply for Judicial Review. Mr Rosemarine was unable to explain the relevance of these submissions to the issue of costs and reasonableness or otherwise of the conduct of the parties when failing to reach agreement to settle this application.

 

83.           Mr Rosemarine continued to rely on his written submissions that the Applicants had a legitimate expectation to payment of their reasonable costs, even though they did not sign the consent order making that offer in July 2020.

 

84.           In relation to the reasonableness of the consent order proposed by the Respondent, Mr Rosemarine sought to rely on the case of R (MMK) v Secretary of State for the Home Department (consent orders - legal effect - enforcement) [2017] UKUT 198 (IAC) in which the Respondent had not, in accordance with the terms of a consent order, made a fresh decision and the applicant in that case was required to issue a fresh application for Judicial Review. The case was primarily relied upon as a basis for the Applicants' mistrust of the Respondent to do as offered in the consent order proposed.

 

85.           Mr Rosemarine stated repeatedly in submissions that the Applicants were entitled to await the grant of their visas before agreeing that these proceedings should be disposed of by consent and that once an indication that this would happen had been given in the week before the hearing (albeit the visas themselves had not physically been obtained as at the date of hearing) they made all efforts and reasonable offers to reach agreement which were refused. I specifically referred Mr Rosemarine to the two consent orders that were proposed and asked why either was reasonable for the Respondent to agree to. No clear answer was given to that question, in fact no reference was made at all to the terms of either consent order proposed by the Applicants at the end of September 2020. Instead, Mr Rosemarine persisted in repetition of other matters and in particular that the Respondent was not entitled to request further information before taking a fresh decision, it being unreasonable and unfair, with reference to there being authority for that, albeit none was identified.

 

86.           As to the principles for an award of costs, Mr Rosemarine relied on Boxall [2001] 4 CCLR 258 at paragraph 22 and proceeded to list a line of cases in which it had since been approved. It was submitted that in accordance with these principles, the Applicants have succeeded in their application and are therefore entitled to their costs.

 

87.           At the end of his submissions, Mr Rosemarine accused Ms Thelen of submitting a skeleton argument which was full of mistakes; referred to the application for Judicial Review being filed on time; to the Acknowledgment of Service being filed late such that the Respondent was not entitled to participate in proceedings and asserted that there were mistakes in the decision granting permission of Upper Tribunal Judge Rintoul. These matters were not elaborated on and were in any event irrelevant to the only remaining issue of costs.

 

Submissions on behalf of the Respondent

 

88.           Ms Thelen began by confirming that her skeleton argument had been settled on instructions and with express approval from those instructing her, with familiarity of the application and there were no known errors.

 

89.           Ms Thelen submitted the following five points in relation to the application for Judicial Review being academic from early July 2020. First, that the standard position is that where a decision maker agrees to reconsider a decision, in the ordinary course any application for Judicial Review would become academic because realistically, that reflects the entirety of substantive relief that could in any event be ordered by the Tribunal. Secondly, there is nothing about this particular application for Judicial Review that would take this claim out of the ordinary or indicate that the Tribunal would order the Respondent to grant the applications for entry clearance. This is not a case which permits only one outcome to the application requiring a mandatory order, particularly where the application had only reached the permission stage. The Applicants have not pointed to any authority in support of such a suggestion. Thirdly, the grant of permission by Upper Tribunal Judge Rintoul demonstrates arguability of traditional errors in discretionary decision making and it is unlikely on the facts of this case, in particular that if a breach of Article 8 was found, that such matters could only be determined one way to make it appropriate for a mandatory order. The grant of permission also raised a new point not in the grounds of challenge which provides no support for a mandatory order. The fact that the Respondent offered to withdraw the decisions and reconsider them a week after the grant of permission does not demonstrate bad faith but rather entirely reasonable and prompt decision-making to resolve the claim. Fourthly, there is no basis upon which the Applicants could reasonably need to hold out in order to obtain a visa and any consent order could have made provision for review after a specific period if a fresh decision had not been taken as indicated and this would have avoided three months of unnecessary correspondence incurring costs on both sides. Finally, the subject matter of correspondence since early July 2020 has not been about the substance of the application for Judicial Review but predominantly about costs.

 

90.           On 1 July 2020, the Respondent's draft consent order included an offer to pay the Applicants' reasonable costs of this application as in the ordinary course, they would be entitled to that. As a starting point, that offer was rejected and the Applicants are not entitled to recover any of their costs after that reasonable offer was made. However, on the facts of this case, Ms Thelen submitted that the Applicants' conduct has been so unreasonable and has resulted in such significant costs to the Respondent, that she should be entitled to her costs from the point of her reasonable offer to settle and that the appropriate order prior to that date is no order as to costs. The reasons for this are set out in Counsel's skeleton argument and continue to be relied upon.

 

91.           As a general point, Ms Thelen highlighted the multiple applications and items of correspondence from and on behalf of the Applicants from the beginning of July, which she described as a confused pool of documentation for the Respondent to deal with. The documents included two applications for wasted and/or indemnity costs (with no differentiation between the two), an application to continue proceedings but also an application for a stay and an application to adduce witness evidence; as well as correspondence about possible settlement and costs. There were a significant number of different matters for the Respondent to consider and respond to, including a list of very serious allegations made against the Respondent and/or her legal representatives.

 

92.           The Respondent was faced with a claim which was difficult to follow, difficult to read, consisted of multiple applications, multiple and inconsistent requests for indemnity and wasted costs without any legal foundation or analysis of the basis for such a claim and no authority for the propositions made.

 

93.           Ms Thelen submitted that this is and should have been a straightforward case, one in which permission was refused on the papers, granted permission at an oral renewal hearing and with a prompt offer to reconsider. What followed was not straightforward or necessary and the Applicants were warned repeatedly by the Upper Tribunal that their behaviour was unreasonable and that they were at risk of having to pay the Respondent's costs if they persisted. Counsel for the Applicants had also entirely ignored the Tribunal's express reminder of his duty to assist the Tribunal by presenting documents in a coherent and legible form, which is a matter of efficiency for all.

 

94.           In relation to the Respondent's request for updated information, this was a brief request to update on the Applicants' current circumstances which far from being abusive and manipulative as claimed, was no more than good practice before a new decision was issued to ensure that it was based on up to date information.

 

95.           In response to the allegation of costs being threatened against the Applicants as a reason to withhold issue of a visa, it is simply a matter of the Immigration Rules that litigation debts are taken into account but not relevant to the present applications as the Respondent has already confirmed that they have been granted. If a costs order is made and remains outstanding, that could only be potentially relevant to any future applications.

 

Post-script to the hearing

 

96.           Following the conclusion of the substantive hearing, there has been repeated correspondence from the Applicants and/or their Counsel seeking, inter alia, to make further submissions (for which no application has been made and no permission granted); make further complaints against the Respondent and/or her legal representatives and make further complaints against the Upper Tribunal. In response to one of those communications, the Respondent has confirmed the issue of visas to the Applicants. The other matters have not been pursued with any formal application to the Upper Tribunal and will not therefore be considered further.

 

 

 

Discussion

 

97.           This application for Judicial Review is, and always should have been a straightforward one, as should have been the ancillary matter of costs. As set out repeatedly by three Judges of the Upper Tribunal prior to the hearing (including myself), an oral hearing to deal solely with the issue of costs was wholly unnecessary and inappropriate. The issue of costs should always be dealt with proportionately by reference to the substantive case and should not as a matter of practice occupy more time and resources of both the Tribunal and the parties than the matters of substance in issue in the claim. This is not what happened in this application, which should never have resulted in a disproportionate use of almost a full day's hearing in the Upper Tribunal solely on the issue of costs and would not have done, but for the wholly unreasonable conduct of the Applicants who have failed to undertake any objective or rational assessment of the merits of their claim and more particularly, of the resolution of any application for costs which could and should have proportionately been done by a Judge on the papers pursuant to written submissions if the parties were unable to agree on costs in principle. Whilst I accept that this application has been pursued by litigants acting in person, with an Interested Party conducting the litigation on their behalf pursuant to a Power of Attorney, they have at all times been assisted and advised by Mr Rosemarine of Counsel on a direct access basis. Unfortunately, Mr Rosemarine has demonstrated repeatedly in the content and tone of his submissions the same failure to undertake an objective or rational assessment of the claim, or the means by which it would appropriately and proportionately be resolved.

 

98.           The applications for costs to resolve between the parties, are as set out above, (i) the Applicants' application for their reasonable costs of this application for Judicial Review, which the Respondent resists; and (ii) the Respondent's application for her costs from 1 July 2020, which the Applicant resists. As expressly confirmed by Mr Rosemarine during the hearing, the Applicants no longer pursue any application for indemnity or wasted costs against the Respondent (despite a continuing claim to entitlement to the same) which is appropriate considering that the same application(s) have already been refused by the Upper Tribunal with no new matters being raised in relation to this; the Applicants have not set out the relevant authority or test for such an application or order and what has been set out in the course of these proceedings would not in any event support an award of costs against the Respondent on an indemnity basis or a wasted costs order. The two primary reasons given for the applications made, that the Respondent failed to resolve the issues at pre-action stage and that the Respondent failed to issue EEA Family Permits (which have never been applied for and which formed no part of these proceedings as pleaded), form no appropriate basis for indemnity or wasted costs against the Respondent.

 

99.           For the avoidance of doubt and without unnecessarily going into detailed reasons in response to each and every allegation of misconduct by the Respondent and/or her legal representatives, I pause here to make it clear that there is no evidence of any unprofessional conduct by either as claimed. The very serious allegations that have been repeatedly made against the Respondent and/or her legal representatives are wholly without foundation and serve only to demonstrate fundamental misunderstandings about the nature of Judicial Review proceedings, professional conduct (particularly in relation to litigants in person) and costs.

 

100.       In relation to the Applicants' application for costs, the test in public law cases such as the present one is set out in M v London Borough of Croydon [2012] EWCA Civ 595, as per Master of the Rolls (not, as submitted by Mr Rosemarine, Boxhall which although for some time was the leading authority, has been superseded for many years). Three categories of cases are set out, together with the general principles for each, in paragraphs 60-65 as follows:

60.           Thus, in Administrative Court cases, just as in other civil litigation, particularly where a claim has been settled, there is, in my view, a sharp difference between (i) a case where a claimant has been wholly successful whether following a contested hearing or pursuant to a settlement, and (ii) a case where he has only succeeded in part following a contested hearing, or pursuant to a settlement, and (iii) a case where there has been some compromise which does not actually reflect the claimant's claims. While in every case, the allocation of costs will depend on the specific facts, there are some points which can be made about these different types of case.

61.           In case (i), it is hard to see why the claimant should not recover all his costs, unless there is some good reason to the contrary. Whether pursuant to judgment following a contested hearing, or by virtue of a settlement, the claimant can, at least absent special circumstances, say that he has been vindicated, and, as the successful party, that he should recover his costs. In the latter case, the defendants can no doubt say that they were realistic in settling, and should not be penalised in costs, but the answer to that point is that the defendants should, on that basis, have settled before the proceedings were issued: that is one of the main points of the pre-action protocols. Ultimately, it seems to me that Bahta was decided on this basis.

62.           In case (ii), when deciding how to allocate liability for costs after a trial, the court will normally determine questions such as how reasonable the claimant was in pursuing the unsuccessful claim, how important it was compared with the successful claim, and how much the costs were increased as a result of the claimant pursuing the unsuccessful claim. Given that there will have been a hearing, the court will be in a reasonably good position to make findings on such questions. However, where there has been a settlement, the court will, at least normally, be in a significantly worse position to make findings on such issues than where the case has been fought out. In many such cases, the court will be able to form a view as to the appropriate costs order based on such issues; in other cases, it will be much more difficult. I would accept the argument that, where the parties have settled the claimant's substantive claims on the basis that he succeeds in part, but only in part, there is often much to be said for concluding that there is no order for costs. That I think was the approach adopted in Scott. However, where there is not a clear winner, so much would depend on the particular facts. In some such cases, it may help to consider who would have won if the matter had proceeded to trial, as, if it is tolerably clear, it may, for instance support or undermine the contention that one of the two claims was stronger than the other. Boxall appears to have been such case.

63.           In case (iii), the court is often unable to gauge whether there is a successful party in any respect, and, if so, who it is. In such cases, therefore, there is an even more powerful argument that the default position should be no order for costs. However, in some such cases, it may well be sensible to look at the underlying claims and inquire whether it was tolerably clear who would have won if the matter had not settled. If it is, then that may well strongly support the contention that the party who would have won did better out of the settlement, and therefore did win.

64.           Having said that, I should add that I have read what Stanley Burnton LJ says in his judgment, and I agree with it.

65.           Having given such general guidance on costs issues in relation to Administrative Court cases which settle on all issues save costs, it is right to emphasise that, as in most cases involving judicial guidance on costs, each case turns on its own facts. A particular case may have an unusual feature which would, or at least could, justify departing from what would otherwise be the appropriate costs order.

101.       I find that the present application for Judicial Review falls within the first category, a case in which the Applicants have achieved their primary remedy sought, namely the withdrawal of the decisions under challenge for fresh decisions to be taken by the Respondent. Whilst further remedies were sought by the Applicants which were not achieved directly as a result of these proceedings, nor would have likely been granted following successful substantive consideration of the application by the Upper Tribunal (such as the grant of entry clearance and the issue of visas, albeit the Applicants have ultimately obtained this following the fresh decisions in their case on the basis of up to date evidence available), this is not a case which on its facts falls in to the second category of cases where it could be said that the Applicants have only succeeded in part.

 

102.       As such, in the normal course of events and as proposed by the Respondent in the draft consent order in early July 2020, the Applicants would have been awarded their reasonable costs of this application for Judicial Review. However, the Respondent submits that given the Applicants' conduct in these proceedings, both before and after that proposed consent order, that the more appropriate order is no order as to costs.

 

103.       Although there is significant force in the submissions made on behalf of the Respondent in relation to the Applicants' conduct after settlement was proposed in early July 2020, there is far less force in relation to the earlier period. This application for Judicial Review was poorly pleaded, with the majority of the grounds being unclear, unparticularised, vague and unsupported; and it was accompanied by a bundle which included a not insignificant number of wholly irrelevant documents (such as news articles critical of the Home Office but not on issues even remotely relevant to this application for Judicial Review or the Applicants' circumstances).

 

104.       However, the pursuance of the application was not unreasonable (particularly in light of the grant of permission showing that grounds were arguable), it followed pre-action correspondence (albeit similarly unclear and unparticularised at least in part) and did not display such significantly poor or unreasonable conduct that would amount to sufficient reason to depart from the usual position that the Applicants should recover their reasonable costs of the application, at least for the period up to the first offer of settlement by the Respondent.

 

105.       In relation to the period after the first offer of settlement, for the following reasons I find that the Applicants' conduct was so poor and unreasonable in refusing to engage meaningfully in the process of settlement and in pursuing these proceedings, with multiple applications, up to and including a wholly disproportionate and unnecessary hearing to be such that not only are they not entitled to their reasonable costs after 1 July 2020; but that the Respondent is entitled to her costs after that point. These are matters on which the Applicants were repeatedly warned by the Upper Tribunal, albeit these were consistently ignored.

 

106.       First, the proposed form of consent first offered by the Respondent was entirely reasonable and there was and remains no good reason for its rejection by the Applicants, either in terms of substance or in the ancillary matter of costs. The terms of the draft consent order for the withdrawal and reconsideration of the decisions under challenge were reasonable, comprehensive and reflected what in reality was the best that the Applicants could hope to achieve even if they succeeded following a substantive oral hearing of their claims. As above, on the facts and given the nature of the applications and grounds of challenge, this was never a case in which there was any realistic prospect of the Upper Tribunal granting a mandatory order for the Applicants to be granted entry clearance and Mr Rosemarine was unable in oral submissions to identify any basis on which this would realistically have happened, referring either to wholly irrelevant matters or simply repeatedly asserting that the original applications for entry clearance in August 2019 were sufficient for entry clearance to be granted. The most that the Applicants could have rationally and objectively achieved in these proceedings was for the withdrawal or quashing of the decisions under challenge. This was made expressly clear in the decision of Upper Tribunal Judge Rintoul dated 6 August 2020.

 

107.       On behalf of the Applicants, Mr Rosemarine submitted that there were a number of reasons as to why it was unreasonable for the Applicants to have agreed to the first proposed consent order, including, inter alia the long period within which reconsideration was offered; the expectation of a further (unlawful) refusal of the applications; the expectation that the Respondent would not comply with the terms offered; the immediate need for further identical Judicial Review proceedings and a failure to agree at least aspects of payment of costs (Counsel's hourly rate) in advance of any schedule of costs being provided.

 

108.       In relation to the time for reconsideration, this was a point on which the Respondent made a further offer of a shorter time period and which did not feature significantly in the correspondence by or on behalf of the Applicants. Aside from one piece of correspondence on behalf of the Applicants to the Upper Tribunal, the Applicants did not expressly dispute the length of time proposed for reconsideration of the decision (by reference to the Respondent's guidance for standard processing times or otherwise) nor was any alternative period proposed to the Respondent by way of correspondence or in a consent order. At its highest, the Applicants made a number of proposals for consent which included a mandatory order for the applications for visit visas to be granted, in one case in as little as within four days of the correspondence. For the reasons already given, this was not a case in which a mandatory order was ever going to realistically be made.

 

109.       In all of the circumstances, including the difficulties of continuing normal business caused by Covid-19 during the summer of 2020, the time period offered for reconsideration was not unreasonable and certainly no slower than the Applicants were likely to achieve as an outcome, by pursuing this application for Judicial Review to a substantive hearing. In fact, the Respondent did in any event reconsider the applications and granted them prior to the substantive hearing, such that if the substantive hearing had been pursued for a mandatory order, the issue of a visa would have taken longer than it did and likely longer than that which had been proposed on 1 July 2020 by the Respondent.

 

110.       In relation to the Applicants' expectation of a further (unlawful) refusal, there was no rational or objective basis for any such concern. Mr Rosemarine sought to rely on the cover letter accompanying the refusal decision which stated " Any future UK visa applications you make will be considered on their individual merits, however you are likely to be refused unless the circumstances of your application change.". However, those decisions had been withdrawn and were no longer therefore of any effect, instead, what was offered (and what occurred) was a fresh consideration of the applications made with the benefit of up to date evidence upon which there was no indication of any future refusal which could bite. Further, the Respondent confirmed that the algorithm challenged was no longer in use (as already set out in the decision of Upper Tribunal Judge Rintoul dated 6 August 2020), such that the Applicants could not reasonably be concerned that any fresh decision would be tainted by the claimed illegality and discrimination on that basis. In any event, as has been shown by subsequent events, the concerns were wholly unfounded as the applications have been granted, there has been no further refusal of the applications and no arguable unlawfulness in the fresh decisions.

 

111.       In relation to the expectation that the Respondent would not comply with the terms of her proposed consent order, there was again no rational or objective basis for the same and in any event, there were options available to the Applicants to deal with any such matters, either in proposing alternative terms in the consent order (which was not pursued), or if need be, further proceedings to enforce the terms if and when breached. Mr Rosemarine's reliance on MMK as an example of where the Respondent had not complied with the terms of an approved consent order does not provide any basis for refusing to agree a reasonable proposal to resolve these proceedings and shows only that there would be a further remedy available in the event of any breach. In any event, again as shown by subsequent events, even without the Applicants agreeing to the draft consent order, the decisions were withdrawn and reconsidered (with a positive outcome) within three months by the Respondent.

 

112.       Mr Rosemarine's submission that the Applicants would have immediately had grounds to issue an identical Judicial Review application following agreement of the proposed consent order was wholly without foundation. At its highest, any further application could only have been on the basis of delay and not on the same grounds as the present application because there would no longer be any substantive decision to challenge, and even if the applications had been refused when considered afresh, the Applicants could not have reasonably assumed that any refusal would contain the same or even any arguable errors. Any delay claim would not have been immediate given the proposed time for reconsideration. There is no identifiable or rational basis upon which the Applicants could have reasonably refused the Respondent's proposed consent order on the basis that an immediate or identical application for Judicial Review would have been necessary or appropriate.

 

113.       The final issue raised and the one which featured most prominently in correspondence between the parties was as to the Applicant's Counsel's fees and in particular, the request that the Respondent agree in advance of any schedule of costs, an hourly rate of £500 for him. The precise claim for costs or part thereof, as opposed to an award of reasonable costs is not an appropriate reason to refuse a reasonable proposal of consent (which included provision for payment of reasonable costs, to be assessed if not agreed) and even less so in circumstances where this correspondence was isolated from any indication of total costs or hours worked and came directly from Counsel. This point was also clearly made to the Applicants in the decision of Upper Tribunal Judge Rintoul dated 6 August 2020. As in the usual course of Judicial Review proceedings, agreement as to substance and costs in principle is wholly appropriate, with the assessment of the amount of costs to be determined afterwards.

 

114.       Secondly, the Applicants' repeated applications to the Upper Tribunal and failure to comply with directions was unnecessary and unreasonable for the reasons identified in the decisions of Upper Tribunal Judges Rintoul and Kopieczek set out already above. The applications were unclear, unparticularised, unsubstantiated and repetitive; contrary to the overriding objective and failed to comply with basic professional standards expected of a reasonably competent barrister for the presentation of court documents (despite the repeated reminders from the Upper Tribunal on this point) in the context of an application for Judicial Review which was, by early July 2020, academic. The assertion that the claim was not academic unless and until the Applicants had achieved all of the remedies sought, particularly the grant of entry clearance, was misconceived for the reasons already given above that there was no realistic basis for any such mandatory order being made by the Upper Tribunal even if the Applicants were successful on every ground at the substantive stage.

 

115.       Thirdly, the draft consent orders proposed by the Applicants were all inappropriate and unreasonable at least in some respects. For example, some contained entirely contradictory costs provisions; the tone and language used was inflammatory and inappropriate; the inclusion of provisions about who the Respondent may instruct in any application for Judicial Review was wholly outwith the grounds of this application for Judicial Review and the inclusion of provision for a one day oral hearing on costs, prior to any costs schedule even being prepared by the Applicants, was premature in the extreme. The Upper Tribunal would not have approved any of the proposed consent orders by the Applicants, even if the Respondent had agreed to them given the poor and inappropriate drafting contained in each of them. There was not a single rational or reasonable offer of settlement by the Applicants; nor was there any rational or reasonable correspondence with the Respondent on any matters relevant to the substance of the claim (separate to the matter of costs) as to the terms of the consent orders proposed by her.

 

116.       Fourthly, in written submissions and maintained orally, Mr Rosemarine claimed that both he personally and the Applicants had a legitimate expectation of the Respondent paying the Applicants' reasonable costs of this application for Judicial Review and that the Respondent had unreasonably reneged on that offer from the draft consent order in July 2020. It was also asserted that it was appropriate to then sign that draft consent order, despite the fact that proceedings and circumstances had since moved on, in late September 2020. This shows a fundamental misunderstanding not only of the principle of legitimate expectation but also of the basic position that an offer which is rejected is not, some significant time later, still available to the Applicants nor does an offer which is rejected in any way bind the Respondent. The Respondent was not reneging on the offer, it had been rejected and she was, in light of the conduct of the Applicants following that rejection, entitled to propose a different outcome on costs.

 

117.       Finally, whatever the dispute between the parties on the issue of costs in principle, no reason at all has been put forward by or on behalf of the Applicants as to why they refused to agree to the Upper Tribunal determining the issue of costs on the papers on the basis of written submissions such as to avoid an oral hearing, which they expressly accept was unnecessary and wholly inappropriate and which wasted the time and resources of the Upper Tribunal and only served to further increase the costs incurred by both parties.

 

118.       For these reasons, I wholly reject Mr Rosemarine's assertion that the Applicants have done all that they could to settle these proceedings and avoid the need for an oral hearing. To the contrary, they have done all they could to continue them leading to the Respondent incurring costs and significant resources of the Upper Tribunal being wasted.

 

119.       In essence, although there have been numerous unsuccessful applications, voluminous correspondence and almost an entire day's oral hearing in the Upper Tribunal, the assessment of this claim being academic and as to the likely costs consequences of pursing the claim remains as it was before Upper Tribunal Judge Rintoul on 6 August 2020 and reiterated by Upper Tribunal Judge Kopieczek on 18 August 2020. The Applicants failed to have regard to those decisions or the warnings contained within them as to the likely costs consequences and have continued pursuing this application for Judicial Review with an unreasonable focus on indemnity costs and wasted costs (albeit ultimately not pursued at the oral hearing and in any event, without any arguable foundation for either claim) without having rationally or objectively considered the merits of the claim, the reasonableness of pursing it, or their conduct. In these circumstances, the Respondent is awarded her costs from 1 July 2020, the only remaining issue is as to whether it is appropriate for the Applicants to pay these costs or for Mr Rosemarine to be liable for them pursuant to a wasted costs order.

 

120.       At the end of the hearing, I raised with Mr Rosemarine the possibility of a wasted costs order on the basis of his conduct as Counsel throughout the course of proceedings, including the oral hearing, making it clear that he would have the opportunity to address this by written representations before any decision on wasted costs was made, in accordance with rule 10(7) of the Tribunal Procured (Upper Tribunal) Rules 2008. At the end of the substantive hearing, nearing the end of the usual court day and without any opportunity to reflect on events, it was not appropriate or fair to have asked Mr Rosemarine to immediately make oral submissions on such matters and as stated at the hearing, he should have an opportunity to make representations in writing with time for reflection and consideration of the matters raised.

 

121.       In the course of representations on behalf of Mr Rosemarine made following the hearing (see further below), Ms Naik QC submitted that the part of the draft judgment circulated to the parties on 18 January 2021 immediately above and the approved transcript of the hearing which followed later were both factually incorrect; submitting that at the hearing I stated that I "will" make a wasted costs order against Mr Rosemarine and had therefore already made up my mind on the issue without any meaningful process for representations or consideration. My own notes of the hearing, the approved transcript and the audio recording do not support the submission made and as above, the written representations have been maintained despite neither Mr Rosemarine nor those acting for him taking the opportunity they requested to listen to the audio recording.

 

122.       There was no statement that a wasted costs order will be made, to the contrary, it was expressly stated that I would make no decision on the matter without Mr Rosemarine first having had an opportunity to make written representations against that; with a written decision to follow. There was no unfairness in the hearing or draft judgment; which followed the usual process in accordance with rule 10(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008, with the representations which followed being fully considered before a decision was reached.

 

123.       The hand down of this decision has been considerably delayed following the substantive hearing to allow for the process of representations to be made in response to the notice given to Mr Rosemarine before the decision on wasted costs could be made; much of which it is necessary to record within the decision so that the delay as well as the representations made are understood in context. The fact of the considerable delay in finalising this decision to allow for this process undermines Ms Naik QC's submission that the issue was pre-determined without any meaningful consideration of the representations made.

 

124.       The draft embargoed judgment was initially circulated to the parties on 18 January 2021, which included at the end a notice to show cause. Further to a request for additional time for response on medical grounds, an amended draft of this judgment and separate notice to show cause was sent to the parties on 25 January 2021.

 

125.       The notice to show cause issued on 25 January 2021 gave Mr Rosemarine the opportunity in accordance with rule 10(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008, to make representations against the making of a wasted costs order; and to make any representations as to the appropriateness of referring his conduct in this case to the Bar Standards Board; both by 4pm on 5 March 2021. Further directions were given on 10 March 2021 and 6 April 2021 to extend the deadline for any response to 4pm on 4 May 2021 due to Mr Rosemarine's continuing ill-health.

 

126.       By 4 March 2021, Mr Rosemarine was legally represented in relation to the matters addressed to him personally and on 17 March 2021, Womble Bond Dickinson (UK) LLP ("WBD") filed a formal notice of acting confirming the matters upon which they are instructed on behalf of Mr Rosemarine.

 

127.       On 13 April 2021, WBD made an application for a transcript of the hearing on 2 October 2020, which was subsequently prepared and approved, being sent to WBD on 7 May 2021.

 

128.       It was apparent that although the application for a transcript had been made on an urgent basis, it was not available to Mr Rosemarine or those acting on his behalf before the deadline for submission of written representations, which were received on 4 May 2021 together with supporting documents (and further to which a composite bundle of additional documents, including ones referred to by the Respondent, was submitted on 5 May 2021). I considered that the transcript may assist in clarification of certain matters raised in the written representations and be relevant to the same, such that directions dated 10 May 2021 were issued to permit the written representations to be amended within 14 days in light of the transcript.

 

129.       On 18 May 2021, on behalf of Mr Rosemarine, WBD requested (i) a list of any changes suggested by myself to be made to the transcript prior to approval, and (ii) the original recording. The correspondence also sought a further extension of time to take into account the same, which was granted to 1 June 2021, albeit the documents and/or information requested was not provided given that no reasons were given for the request and Mr Rosemarine and those representing him had the approved transcript which should of itself have been sufficient for confirmation of the contents of the hearing.

 

130.       In further correspondence on 28 May 2021, WBD repeated the request for (i) a list of any changes suggested to the transcript prior to approval and (ii) the original recording; on the basis Mr Rosemarine and Mager Jarmakani had noted differences between the approved transcript and their recollection of the hearing. Those requests were repeated again on 28 May 2021 with additional reasons, including the need for transparency as to the origins of the content of the transcript in the interests of fairness and ensuring parties are on an equal footing. WBD were informed that no list of changes to the transcript would be provided but that arrangements were being made for access to the audio recording so that the accuracy of the transcript could be checked against it.

 

131.       On 1 June 2021, amended written representations together with accompanying documents were submitted on behalf of Mr Rosemarine.

 

132.       On 6 July 2021, in response to the request for the original audio recording of the hearing, I gave the following directions:

 

1)              The audio recording of the hearing before UTJ Jackson on 2 October 2020 will be available to the persons listed and on the conditions set out below; to listen to in a court in Field House, in private, on a date to be listed with reference to the availability of those attending.

 

2)              The persons who may attend for this purpose are Mr Rosemarine, Ms Sonali Naik QC (Counsel for Mr Rosemarine), Mr James Robins & Ms Helen Creech of Womble Bond Dickinson LLP (solicitor instructed on behalf of Mr Rosemarine) and any short-hand writer that Mr Rosemarine or his legal team wish to accompany them. The name of any short-hand writer to attend to be provided no less than three working days beforehand.

 

3)              The listing will be for a single court day, within usual court hours and with a court clerk in attendance to facilitate the playback. For information, the recording is a little under 3 hours and 15 minutes in total. Within the court time available, there may be an opportunity to replay parts of the recording if required.

 

4)              Those attending court to listen to the audio of the hearing may take notes whilst listening to the same but are not permitted to make any other recording of the audio; nor will any copy of it be provided.

 

5)              Mr Rosemarine (or those instructed on his behalf) may amend the submissions made in response to the Notice to Show Cause order within 14 days of the date on which the audio recording of the hearing on 2 October 2020 is heard.

 

133.       Mr Rosemarine wrote to the Upper Tribunal directly on 16 July 2021 (letter dated 15 July 2021) to request a copy of the video of the substantive hearing to be sent to him electronically; my changes to the transcriber's original transcript; or in the alternative, for the video to be made available in Manchester UTIAC (on the basis that Mr Rosemarine was unable to safely or economically travel to London). This correspondence was said to be sent directly from Mr Rosemarine rather than WBD on the basis that: "Again to keep costs down, my lawyers have suggested I myself reply to your directions, and that "this is an aspect that [I] deal with [my]self and that WBD is not instructed to do so." The latter is contrary to the basis upon which WBD put themselves on record with the Upper Tribunal, which did not expressly contain any limitation on the basis of their instructions ^[2].

 

134.       On 2 August 2021, a response to Mr Rosemarine's correspondence was sent to WBD (as those on record as representing Mr Rosemarine in relation to the notice to show cause) confirming that (i) there is no video recording of the hearing on 2 October 2020 (it was an audio recording only); (ii) a decision has already been given to the request for any changes made to the transcript before approval; (iii) the directions of 6 July 2021 stand on the basis that any person can attend to check the accuracy of the approved transcript against the audio recording with available facilities to do so in Field House; and finally a request was made for confirmation of who wished to attend to listen to the audio and if no such attendance was requested, whether the written representations submitted to date stand. There was and has never been any need for Mr Rosemarine personally to listen to the audio in circumstances where what was requested was an opportunity to check the factual accuracy of the transcript. That does not require any prior personal involvement or attendance at the hearing on 2 October 2020.

 

135.       Further correspondence was received directly from Mr Rosemarine on 3 August 2021, repeating the request and statement that he is replying personally on the suggestion of WBD to keep costs down.

 

136.       On 13 August 2021, WBC forwarded Mr Rosemarine's response to the correspondence on 2 August 2021; to the effect that he had contacted Manchester Piccadilly Hearing Centre directly who indicated that they had capacity and facilities for Mr Rosemarine to attend to listen to the audio there and that Mr Rosemarine personally needed to listen to the audio because of discrepancies between what he heard during the hearing and the approved transcript; but he was unable to travel to London to do so. The request was repeated for the audio recording to be released directly to Mr Rosemarine or for this to be made available in the IAC in Manchester. I pause to note that Manchester Piccadilly is a First-tier Tribunal hearing centre and not part of the Upper Tribunal, such that even if such direct contact contrary to the directions was appropriate, it was to the wrong body.

 

137.       On 18 August 2021, the Upper Tribunal confirmed that the directions I gave on 6 July 2021 stand and confirmation was sought of any persons who wished to attend to listen to the audio in accordance with those directions. If no such attendance was requested, WBD were asked to confirm whether the written submissions filed to date stand as the final written representations.

 

138.       On 23 August 2021, separate correspondence was received from WBD (forwarding Mr Rosemarine's personal response together with what was said to be medical evidence) and from Mr Rosemarine directly. Whilst in response to the same communication from the Upper Tribunal, the content of the two separate pieces of correspondence differed and neither referred to the other, nor were any reasons provided for the multiple correspondence.

 

139.       Confirmation was given again by the Upper Tribunal on 25 August 2021 that the directions dated 6 July 2021 stand, with the request repeated for confirmation of whether anyone will attend to listen to the audio and if not, whether the written representations to date stand.

 

140.       On 31 August 2021, WBD informed the Upper Tribunal that Mr Rosemarine is undergoing medical tests (not specified or evidenced further) and unable to attend Field House to listen to the audio recording, but that he reserved his position as to whether he wished to add to the written representations made to date if he is able to listen to the audio in due course. It was stated that Mr Rosemarine wished to add further, separate matters to his written representations and approval for funding of this work was required from his insurers such that an extension of time was sought to 1 October 2021 for further revision of the submissions.

 

141.       I declined that request on 8 September 2021 on the basis that Mr Rosemarine had been given an opportunity only to revise or confirm the written representations submitted on his behalf once the audio recording had been listened to, to check the accuracy of the approved transcript, primarily to ascertain whether the allegations made as to the same were maintained. This was not an open ended opportunity for additional matters to be added or any other revision given the ongoing delay to this decision being handed down and the significant time that had already been made available for a response to the show cause notice. Although no clear answer had been given to the Upper Tribunal's repeated requests, it was inferred that despite the request to do so, no person intended to listen to the audio in accordance with the directions given on 6 July 2021 and therefore it was stated that this judgment, including the decision on wasted costs would be finalised for hand down on the basis of the written representations made to date. It is noted that the extended correspondence requesting to hear the audio pursuant to an allegation that the approved transcript was not accurate, which was not in the event undertaken, has unnecessarily and significantly further delayed the hand down of this judgment by some further four months.

 

Mr Rosemarine's submissions on wasted costs and conduct

 

142.       In deciding whether it is appropriate to make a wasted costs order against Mr Rosemarine, I have taken into account the revised written submissions made on his behalf from Ms Sonali Naik QC dated 1 June 2021 and the written statement from Mager Jamarkani (see further below); together with the history of these proceedings set out above.

 

143.       As above, stated to be for the purpose of making written representations, Mr Rosemarine, directly or through WBD acting on his behalf, made a number of repeated requests for further information or documents beyond the approved transcript. Directions were given for Mr Rosemarine and/or those representing him to listen to the audio to check the factual accuracy of the approved transcript against it; however, despite the requests and extended period of time over which they were made, this opportunity has not been taken and therefore the written submissions made to date stand as those to be considered. It is in the interests of justice for this decision to be finalised and handed down in light of the history of this application for Judicial Review without further delay and it is not necessary or in the interests of justice for any further extensions of time to be given. Mr Rosemarine and those acting on his behalf have had a significant period of time in which to consider all necessary matters and make representations in response (even taking into account the limited evidence of Mr Rosemarine's ill-health for at least some of this period).

 

144.       The written representations rehearse the history of these proceedings and make a number of general points as to the quality of the remote hearing (including a failure of the Tribunal to consider of it's own motion an adjournment for this reason, a point already dealt with above); the fact that Mr Rosemarine is as yet unpaid for any of his work by the Applicants and that overall, the application for Judicial Review had not become academic by early July 2020 following the Respondent's proposed consent order. This was said to be primarily because the period of time offered for reconsideration of the decisions under challenge was unreasonable, perverse, contrary to policy (for decisions to be made within three weeks), without explanation and possibly suggestive of the likely future outcome of the applications. In the context of Covid-19 presenting special circumstances, the offers made amounted to reconsideration within an indefinite period of time. Further, it is submitted that the timescale of the request for further information and the grant of visas immediately before the substantive hearing was dictated by this application for Judicial Review.

 

145.       In summary, Mr Rosemarine opposes the making of a wasted costs order against him because (i) the Upper Tribunal cannot be satisfied that the high threshold for such an order has been crossed; (ii) the Respondent failed properly or at all to engage with the Applicants with a view to agreeing a form of consent to dispose of the application between 23 September and 2 October 2020; (iii) Mr Rosemarine has made payment in full of the Respondent's costs such that discretion should not be exercised to make a wasted costs order; and (iv) privilege has not been waived

 

146.       The written representations set out the wasted costs jurisdiction, limited to cases where the standards of legal representatives constitute an 'improper, unreasonable or negligent act or omission' pursuant to section 29(5) of the Tribunals, Courts and Enforcement Act 2007, as defined in Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40. It is submitted that there is no basis for making any allegation of improper conduct against Mr Rosemarine. In relation to reasonableness, it is submitted:

 

"AMR accepts that he has a unique and possibly somewhat unorthodox style of presenting his clients' cases. He further accepts that, with hindsight, and in respect of the period between 1 July 2020 and 2 October 2020, his robust and determined approach to representing the Applicants' interests may have meant that he has pursued matters with more vigour than some, unaware of all the facts, would think was appropriate. He was influenced in his tactical decisions seeking to advance his clients' interests and obtain a meaningful remedy for them, by the numerous previous refusals by the Respondent of the Applicants' applications for entry clearance, by the Respondent's refusal to engage properly in the pre-action process, by concerns about the Applicant's state of health and advancing years, by the prospect that even a reconsideration of the JR challenged decision might not result in the outcome the Applicants hoped to achieve and by the Respondent's proposed delay in reconsidering the decision, which was not in fact reconsidered and notified to the Applicants until very shortly before the 2 October 2020 hearing. But AMR's conduct was not unreasonable, in the sense in which that term is to be construed in the WCO context."

 

147.       Finally it was submitted on this point that Mr Rosemarine's conduct was not negligent in the sense that he failed to act with the competence reasonably to be expected of ordinary members of the profession, or in any other sense. Mr Rosemarine sought only to represent his clients and protect their position to the best of his ability. Mr Rosemarine's conduct should not be judged in hindsight but on the basis of information and instructions available to him at the relevant time, so far as that can be ascertained in this case and to the extent that Mr Rosemarine cannot tell the whole story for reasons of privilege, he is entitled to the benefit of the doubt.

 

148.       Mr Rosemarine is said to have properly pursued this application for Judicial Review on behalf of the Applicants after the offer to settle on 1 July 2020 for the following reasons. First, the offer of 1 July 2020 did not necessarily mean that the proceedings had achieved as much as they realistically could have achieved as it remained open to the Respondent to refuse the applications on reconsideration for the same or similar reasons without the assistance of a favourable judgment to the Applicants on the process adopted, the application of the rules to the applications made and whether there was a breach of Articles 8 and/or 14 of the European Convention on Human Rights.

 

149.       Secondly, there was every reason for the Applicants to think that on any reconsideration of their applications, the Respondent would refuse them again because in the refusal under challenge, the decision-maker had indicated that any further application was likely to be rejected absent any change of circumstances. Further, the four month reconsideration period was at odds with the Respondent's policy position for the determination of visit visa applications within three weeks. In these circumstances, the Applicants instructed Mr Rosemarine to continue the application for Judicial Review and the circumstances were such as to justify a mandatory order to require the Respondent to reconsider the applications in accordance with the law and her own policy, absent special circumstances.

 

150.       Thirdly, the Applicants were entitled to pursue their application for declaratory relief of their claimed breach of Article 8 and/or 14 rights, which was ongoing; together with a mandatory order for reconsideration in accordance with an agreed timescale in accordance with law and policy. It is submitted that whilst a mandatory order is not usual, this was not an ordinary case and the fact that visas were granted shortly before the hearing and less than three months from the grant of permission was unusual and indicative that pressing for substantive relief was appropriate and led the Respondent to reconsider the applications lawfully and timeously.

 

151.       Fourthly, the Respondent never formally withdrew or resiled from her defence to the claim under the Equality Act or on human rights grounds.

 

152.       Overall, it is submitted that as a matter of law the application for Judicial Review was not academic from 1 July 2020, 6 August 2020 or at all and could properly be pursued - it was not therefore unreasonable to do so to the point where the further decisions were made and visas issued. The Upper Tribunal can grant mandatory orders where this is the only legally permissible result on a claim (with such examples given) and Mr Rosemarine instructed those representing him that therefore he was correct in pointing out the availability of a mandatory order in the context of this claim.

 

153.       On behalf of Mr Rosemarine, it is submitted that the Respondent's proposed terms of settlement were insufficient to address all of the issues in the claim, including the mandatory order sought, whether the circumstances justified a 'rolling review' to challenge any subsequent adverse decision and/or declaratory relief. As a matter of principle in these circumstances, a barrister may reasonably advise a client to continue an application for Judicial Review whilst advising them of the litigation risk of doing so.

 

154.       In relation to the exercise of discretion, when Mr Rosemarine (though his insurers) has already made payment in full to the Respondent of the costs incurred; it is submitted that no wasted costs order is necessary given that the wasted costs jurisdiction is compensatory not punitive.

 

155.       On 14 April 2021, WBD wrote to the Respondent to offer her £5,998 in full and final settlement of her assessed costs in this case for the period 1 July to 2 October 2020: "to ensure that (1) the Respondent, being the party who has incurred these costs, is not left out-of-pocket, (2) that further costs are not incurred in respect of any dispute relating to those costs and (3) that the Jarmakanis' position is not prejudiced by any further order being made against them in relation to those costs, while (4) leaving open to them their right to pursue their own costs to date, including by applying for permission to appeal, should they so wish. We offer this, despite in our view there being no improper, unreasonable or negligent act on the part of our client, Andrew Rosemarine." Detailed reasons then followed which are consistent with the written representations made, concluding with: "Nevertheless, our client and his insurers accept that costs were incurred by SSHD as a result of his clients' insisting on continuing this litigation beyond 1 July 2020. ..." and a repetition of the four points already set out above.

 

156.       The Respondent queried the basis upon which the offer was being made on 29 April 2021, it being unclear why payment of costs on Mr Rosemarine's behalf was being made absent any acceptance that the Upper Tribunal was entitled to make a wasted costs order against him. The Respondent further disputed the matters raised in relation to the 2 October 2020 hearing, which are not necessary to rehearse in this decision.

 

157.       On 1 May 2021, WBD replied stating that the reasons had already been given in the letter dated 14 April 2021 for the offer of payment of costs, but: "For the avoidance of doubt, however, it is not accepted that it is appropriate for the Upper Tribunal to make a wasted costs order against our client. We shall be making representations to that effect. Our approach to you was made simply in order to ensure that the SSHD receives all that it has claimed for its own costs and to avoid any future dispute with SSHD over that sum. Any issues in relation to our client's conduct are completely separate and will be dealt with in representations on his behalf." Although the Respondent continued to query the basis of the offer of payment of costs, the amount summarily assessed was paid to the Respondent.

 

158.       For these reasons it is said that there are no longer any wasted costs to be compensated and therefore no need for any further order to be made in relation to the Respondent's costs assessed in the sum of £5,998.

 

159.       In relation to privilege not having been waived, it is submitted that Mr Rosemarine is constrained in his ability to fully explain his position to the Upper Tribunal as well as to those instructed on his behalf. In particular, it is stated that Mr Rosemarine is unable to go beyond a letter dated 27 January 2021 from Mager, Hisham and Sana Jarmakani in which it is confirmed that: "our Barrister Mr Rosemarine advised us at all stages that there was a high risk of costs being awarded against us, if we continued our JR case after 01 July 2020. However, due to receiving no acceptable response from the HO representative we insisted that Mr Rosemarine continues nonetheless.". Nor can any submissions be made on the fact or content of any discussions or advice with the Applicants or Interested Parties; nor as to the fact or content of instructions given to Mr Rosemarine.

 

160.       The written representations rely on the decision in Medcalf v Mardell (Wasted Costs Order) [2003] 1 AC 120 which at paragraph 23 stated that: "... Where a wasted costs order is sought against a practitioner precluded by legal professional privilege from giving his full answer to the application, the court should not make an order unless, proceeding with extreme care, it is (a) satisfied that there is nothing the practitioner could say, if unconstrained, to resist the order and (b) that it is in all the circumstances fair to make the order.".

 

161.       The written representations do refer in one other part to instructions given to Mr Rosemarine, however they make no reference at all to the very detailed written statement from Mager Jarmakani dated 30 April 2021 in support of his application for permission to appeal (save for a reference in paragraph 106 of the submissions to this document and its broad support of Mr Rosemarine), which includes an account of the instructions given to Mr Rosemarine and expressly states that a copy has been provided to WBD. The statement contains details of advice given and instructions which have been provided to the Upper Tribunal by the Interested Party acting as representative of the Applicants; as well as to those acting on behalf of Mr Rosemarine. In these circumstances, whilst the representations in support of Mr Rosemarine and against any wasted costs order being made were inappropriate in the context of an application for permission to appeal and on matters which were primarily for Mr Rosemarine to respond to, I have also taken these matters in to account when making my decision on this point.

 

162.       In particular, I have noted the positive endorsements given as to Mr Rosemarine's services to the Applicants and as to the advice received from him and instructions that were given to him to pursue this application for Judicial Review, set out primarily in paragraphs 49 to 55 of the statement as follows:

 

"49. Our barrister warned us at all stages of possible adverse costs consequences from Immigration Judges. Especially those unsympathetic to elderly Parents, fearing death, before ever seeing their Children and Grandchildren. After SSHD offered to reconsider our visa applications within an indefinite "4 months +++", we had already been waiting a year for our paid for visa, (and 17 years because of previous SSHD refusals). So we gave our Barrister instructions to maintain pressure on SSHD, by maintain JR proceedings on SSHD, so that SSHD might speed up its reconsideration, for fear of possible criticism of SSHD by the High Court or UTIAC, and to enable possible judicial help in getting us our visas faster than an indefinite yet further 4 months +++.

 

50. Our Barrister made clear to us that our pursuing JR proceedings, after IJ Rintoul's pressure on us to close down proceedings, was against our Barrister's own interests. We, nonetheless, insisted to help us. Because SSHD's July 2020 offer of 4 months +++ gave us nothing of our main purpose in launching proceedings: getting our visas.

 

51. I instructed our Barrister, on behalf of our entire family, on a private access basis. He has explained all documents in this case to me and possible consequences. We have sought advice often. He also advised us of the possible consequences of our not signing the SSHD's unsigned draft Consent Order of 01 July 2020 but it was my family's decision to instruct our Barrister to continue these proceedings.

 

52. Our Barrister advised concision and simplicity, when the SSHD required three lots more of yet further evidence from us in September 2020. He has told us often that Less can be More, meaning it's better to file a few forceful focused pages, than much lengthier documents.

 

53. The correspondence which we instructed him to send to the SSHD, was on our instructions. We instructed them, in the emergency circumstances of our being vulnerable to death from covid. We could not wait for continuing SSHD delays, already over 15 times the SSHD's own official Guidance times.

 

54. SSHD never replied to any of our correspondence. If SSHD had replied to it, we would not have instructed him to write further correspondence, to which Judge Jackson appears to object. We would not have made the applications, to which Judge Jackson appears to object.

 

55. Our Barrister explained to us, at all stages, that successful JR litigants never win all their costs. So we insisted he do all he could to try and help us get as much costs as possible from SSHD, to try and cover as much of our outlay and debts as possible."

 

Wasted costs - discussion

 

163.       I deal first with the issue of privilege raised in the written representations on behalf of Mr Rosemarine as to some extent the points relied on must be viewed within the context of what he has and has not been able to say. It is said that Mr Rosemarine is constrained in what he has been able to say in response to issues raised as to his conduct in these proceedings because the Applicants have not expressly consented to the use of privilege material between them (and the Interested Parties) and Mr Rosemarine; save for a statement from the Applicants and Interested Parties confirming that they have been advised at all times of the risk of an adverse costs order in continuing the application for Judicial Review after 1 July 2020, but gave instructions to continue nonetheless.

 

164.       As above, however there is far more detailed information before the Upper Tribunal as to the advice sought and received by the Applicants and the instructions given to Mr Rosemarine in relation to this application in the statement from Mager Jarmakani. Whilst WBD do not act for either of the Applicants or the Interested Party (and it is not therefore suggested that they had any involvement in the drafting of the written statement), they were aware of both the contents of this statement having been provided with it by Mager Jarmakani and the fact that it had been submitted to the Upper Tribunal (as expressly noted in the written representations on behalf of MR Rosemarine). In these circumstances, it is of significant concern that in the written representations, Ms Naik QC has either failed to turn her mind to this detailed evidence at all or failed to explain why the submissions on privilege remained appropriate in spite of the detailed disclosures made as to advice and instructions given. To simply assert privilege has not been waived without dealing with this material does not accurately refer to or reflect the objective assessment required of whether privilege can properly be asserted and relied upon in such circumstances.

 

165.       Although there does not appear to have been express consent by the Applicants or Interested Parties (themselves or as representatives of the Applicants) for the use of privileged material by Mr Rosemarine; there has been a deliberate disclosure of detailed information by Mager Jarmakani in these proceedings which I find is a waiver of privilege in accordance with the principles in Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 further to which privilege cannot be asserted in relation to other material of the same subject matter (here the legal advice from and instructions to Counsel in this application for Judicial Review) as a matter of fairness to prevent 'cherry picking'. Mr Rosemarine cannot in these circumstances rely on privilege to claim the benefit of the doubt in relation to matters of conduct raised in these proceedings. In any event, first, there is in fact information before the Upper Tribunal which can be taken into account, and secondly, there are a number of issues raised as to Mr Rosemarine's conduct to which the nature of advice and instructions can have no material bearing given the standards to be reasonably expected of a barrister and in light of their professional duty to the Tribunal (see further below).

 

166.       In making the decision on whether a wasted costs order should be made, I will consider the following three questions. First, whether Mr Rosemarine acted improperly, unreasonably or negligently? Secondly, if so, did such conduct cause the Respondent to incur unnecessary costs? Finally, if so, is it in all the circumstances of the case just to order the legal representative to compensate the Respondent for the whole or any part of the relevant costs?

 

167.       The meaning attributed to the parts of the first test has been set out by the Court of Appeal in Ridehalgh v Horsefield as follows:

 

-                 "Improper" means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.

 

-                 "Unreasonable" also means what is has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance resolution of the case, and it makes no difference that the conduct is the produce of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted different. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable.

 

-                 "Negligent" should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession.

 

168.       The written representations submitted on behalf of Mr Rosemarine focus primarily on the issue of whether this application for Judicial Review became academic on or after 1 July 2020 when the Respondent proposed a draft consent order to settle proceedings; and whether it was reasonable to pursue the application beyond that point. However, the conduct during this period included not only pursuance of the application for Judicial Review per se; but also the repeated applications made to the Upper Tribunal, in particular those seeking indemnity and/or wasted costs against the Respondent and more generally, the approach to settlement (or otherwise) of the application. I deal first with the pursuit of this application for Judicial Review beyond 1 July 2020 and return to the other matters.

 

169.       I have already given detailed reasons above as to why this application for Judicial Review was rendered academic by the Respondent's proposed consent order on 1 July 2020 above. The written representations on behalf of Mr Rosemarine refer to some extent to some of those matters already considered above and to other points not raised or relied upon by the Applicants or Mr Rosemarine in the course of correspondence with the Respondent or in submissions to the Upper Tribunal. The former included the concern that the Respondent would again refuse the applications upon reconsideration, in part in reliance on the cover letter to decisions which had been withdrawn; which has already been dealt with above.

 

170.       The points not previously relied upon include: (i) the four month reconsideration period being at odds with the Respondent's general position that visit visa applications should be determined within three weeks; (ii) the circumstances of the claim justified the making of a mandatory order (either to grant the visit visa applications or to reconsider the applications for the same in accordance with the law and the Respondent's own policy); (iii) the Applicants were entitled to pursue their application for declaratory relief for their claimed breach of Articles 8 and/or 14 of the European Convention on Human Rights; (iv) the Respondent not having formally withdrawn or resiled from her defence to the human rights claim or claim under the Equality Act 2010; and (v) the circumstances of the claim may justify a 'rolling review' to challenge any subsequent adverse decision.

 

171.       The first point was never expressly relied upon by or on behalf of the Applicants in correspondence with the Respondent or in the course of submissions to the Upper Tribunal. As above, save for one piece of correspondence with the Upper Tribunal, the Applicants never proposed an alternative time period for reconsideration of the decisions (with reference to the usual service delivery timescales or otherwise) and instead only proposed a mandatory order for the grant of visas. In any event, the Respondent did in fact reconsider the applications and grant entry clearance as visitors to the Applicants within three months of the proposed consent order, quicker than proposed in the draft consent order sent on 1 July 2020 and quicker than would have been likely had the application proceeded to a substantive hearing on the merits of the claim (rather than solely on the issue of costs).

 

172.       As to the second point, although it is within the power of the Upper Tribunal to grant a mandatory order as to the outcome of a decision, this is rare and only realistically (rather than theoretically) possible in extreme cases where there could only be one legally permissible outcome to the application made. The present application for Judicial Review fell very far below such a case on the facts, even if the Applicants had ultimately been successful on every ground pursued in the application. During the substantive hearing, Mr Rosemarine was asked three times the basis upon which the Upper Tribunal could or would have granted a mandatory order requiring the Respondent to grant entry clearance as visitors to the Applicants, to which no coherent answer was given and only an assertion that it had been proved that the refusals were in breach of human rights, the Upper Tribunal is bound by the EEA Regulations (under which the Applicants had never made any application and which formed no part of the grounds of this application for Judicial Review) and it had been proved that there was a breach of the Equality Act. However, at its highest, the Upper Tribunal had granted permission on the basis that the claim on the pleaded grounds was arguable, not that any breaches of human rights or the Equality Act had been proved. No further or more detailed submissions were made on this point, despite it also being expressly relied upon by the Respondent. The mere possibility of a mandatory order, devoid of any assessment of the merits of achieving the same by reference to the facts of this case does not support the assertion that the claim was even 'not necessarily' academic, let alone any assertion that it was not in fact academic.

 

173.       The third and fourth points are wholly irrelevant given that the Applicants never sought a declaration that the decisions under challenge were in breach of Article 8 and/or 14 of the European Convention on Human Rights; nor was any declaration or remedy sought specifically in relation to the Equality Act 2010. Neither of these matters were raised by or on behalf of the Applicants in correspondence with the Respondent following the proposed consent order on 1 July 2020, and although there was some reference to these matters forming part of the pleaded case in the skeleton argument submitted immediately prior to the hearing they were not pursued orally at the substantive hearing and no remedy in respect of them was ever sought or purused. In these circumstances, these were clearly not matters which indicated that the application was not rendered academic by the offer to withdraw and reconsider the applications, particularly in circumstances where it had been confirmed no later than 6 August 2020 that the algorithm would not be used in any reconsideration.

 

174.       The final point as to whether this would be an appropriate case for a 'rolling review' is raised more as a question rather than with any positive submission that the present case would be suitable for 'rolling review' to challenge any subsequent adverse decision and the same would go against the very significant caution against the appropriateness of the same expressed repeatedly by the higher courts. This is not a case which would even arguably be appropriate for such a 'rolling review' and in any event, the Applicants' case simply was not pursued on that basis - there was no proposed consent order or even correspondence with the Respondent about the possibility. At its highest, there was a single piece of correspondence with the Upper Tribunal in which it was suggested that proceedings be stayed until one month after the reconsideration decision (which was refused by the Upper Tribunal at the time).

 

175.       I have also taken into account the evidence before me as to the Applicants' instructions to pursue the application for Judicial Review, despite being advised as to the adverse costs of doing so. However, for the reasons given above, there was no rational basis upon which it could be said that the claims were anything other than academic following the proposed consent order on 1 July 2020 and the issues now said to have been of concern with the terms proposed at the time simply did not feature in the inter-partes correspondence or the submissions to the Upper Tribunal in relation to this issue at the substantive hearing.

 

176.       I return to Mr Rosemarine's conduct more generally, including the nature of the correspondence with the Respondent which failed entirely to constructively engage with the possibility of a reasonable settlement of this application for Judicial Review and the pursuit of multiple applications to the Upper Tribunal which had no arguable foundation or merit. These are the areas referred to above to which I do not consider the nature of advice or instructions, whether or not privilege was waived expressly or by the detailed parts of the witness statement from Mager Jarmakani, to have any material bearing because they relate to matters of competence and what can properly and appropriately be pursued before the Upper Tribunal.

 

177.       I have set out in detail above the history of correspondence between the Applicants/Mr Rosemarine and the Respondent following the proposed consent order on 1 July 2020 up to the date of hearing on 2 October 2020; as well as the applications made to the Upper Tribunal during this time, an example of which is quoted from directly and is representative of the nature of correspondence to the Upper Tribunal and to the Respondence, and of matters relied upon repeatedly therein by Mr Rosemarine. The nature and content of that correspondence on behalf the Applicants speaks for itself.

 

178.       For the reasons set out above, there was no reasonable or appropriate form of consent proposed by or on behalf of the Applicants; or even rational correspondence engaging with the substance of the issues. The tone and substance of what was proposed on each occasion was inappropriate and would not have been approved by the Upper Tribunal even had it been agreed by the Respondent. For example, the terms of consent were drafted using inflammatory language; they inappropriately included in the terms of the order explanations for it; they contained contradictory provisions; they contained provisions which were wholly premature and included matters which were wholly outwith the scope of remedies sought or relevant to this application for Judicial Review. It is notable that the written representations on behalf of Mr Rosemarine do not engage at all with any of these proposed consent orders. The draft consent orders proposed on behalf of the Applicants were not drafted to a competent standard to be reasonably expected of a member of the profession and do not indicate any proper engagement with the Respondent with a view to resolving any matters of substance but focused instead on ancillary matters of costs which could and should have been proportionately dealt with by written submissions in the absence of agreement.

 

179.       The written representations also fail to engage at all with Mr Rosemarine's conduct in the days immediately prior to the hearing on 2 October 2020, during which despite he/the Applicants expressly agreeing that an oral hearing was wholly inappropriate and unnecessary on the sole issue of costs; there was a refusal to sign a proposed consent order (in terms also substantively suggested as appropriate by the Upper Tribunal) to settle the claim with the issue of costs to be determined on the papers following written submissions. There is no explanation at all as to why that proposed form of consent was rejected and therefore why the Applicants forced the oral hearing to proceed; nor could there be any rational explanation for the rejection of this offer in all of the circumstances given at that stage, the Respondent had granted the applications (even if the physical visas had not yet been received by the Applicants, a matter which was no more than a formality). Ultimately, the hearing was attended on the sole issue of costs but without proper preparation for the same on behalf of the Applicants, for example, there was no costs schedule and even on the issue of principle of liability for costs, Mr Rosemarine's submissions were based on legal authority which was many years out of date.

 

180.       On behalf of Mr Rosemarine, it is said that it was not poor or inappropriate to seek indemnity costs on behalf of the Applicants in the circumstances of the claim and where there is precedent for such an award where a defendant acts carelessly or fails to make appropriate disclosure, by reference to the case of R (O). However, again this submission amounts to no more than the theoretical possibility of such an award without any objective assessment of the facts of this application for Judicial Review or whether there were proper grounds to make the application in this case. The applications made to the Upper Tribunal, on more than one occasion, were for indemnity and/or wasted costs (or wasted damages) with no distinction between the two, no reliance on R (O) and no properly pleaded basis for either claim beyond unsubstantiated allegations against the Respondent and/or her legal representatives; which as above, were wholly unfounded and without merit. There is no rational or objective basis upon which the Upper Tribunal could have even arguably awarded the Applicants their costs on an indemnity basis, nor awarded wasted costs against the Respondent. It is also of note that ultimately this was not pursued at the hearing on 2 October 2020 despite the only issue being costs.

 

181.       Taking into account all of the matters set out in this decision, whilst Mr Rosemarine's conduct may not reach the threshold of 'improper' as set out and understood in Ridehalgh, (although at least some of the examples of submissions made were arguably improper) I do conclude that it was, considered as a whole, unreasonable and negligent. The pursuit of the application for Judicial Review, but more significantly the nature of correspondence to and allegations against the Respondent together with repeated applications for costs without proper foundation were wholly unreasonable and permit of no reasonable explanation. The applications made and proposed consent orders cannot be described in any way as advancing a resolution of the case, but on their face appear antagonistic and designed to harrass.

 

182.       A number of factors have been set out as to the motivation for Mr Rosemarine acting in the way that he did, in what he saw as advancing his clients' interests, does not detract from an objective assessment of the conduct itself. The same issues fall equally under the heading of negligence, with Mr Rosemarine's pursuit of this application for Judicial Review after 1 July 2020, including the lack of any proper engagement to resolve the outstanding issues and the pursuit of unfounded applications for costs fall far below the competence reasonably to be expected of ordinary members of the bar. Mager Jarmakani's statement indicates that Mr Rosemarine was instructed to try to cover as much of their costs as possible in the proceedings, but that does not excuse the pursuit of applications without legal or evidential foundation for indemnity costs and/or wasted costs. To the contrary, the recovery of the greatest proportion of costs would have been achieved by agreement to the consent order proposed in 1 July 2020; a matter which the Applicants were repeatedly warned about by the Upper Tribunal.

 

183.       The answer to the first question is therefore that Mr Rosemarine has acted unreasonably or negligently and as above, there is no benefit of the doubt to be given for reasons of privilege as this has been waived.

 

184.       As to the second question, the Respondent has incurred unnecessary costs in the period from 1 July 2020; a matter which has already been expressly accepted on behalf of Mr Rosemarine in the correspondence from WBD to the Respondent dated 14 April 2021.

 

185.       The final question is whether in all the circumstances it is just to order Mr Rosemarine to compensate the Respondent for the whole or any part of the relevant costs. Taking into account all of the matters set out above, it is just for the Respondent to be compensated for the unnecessary costs incurred in the pursuit of this application after an entirely appropriate and reasonable form of consent was proposed on 1 July 2020 and I therefore make a wasted costs order against Mr Rosemarine to pay the Respondent's reasonable costs from 1 July 2020.

 

186.       In so deciding I have taken into account the written representations on behalf of Mr Rosemarine that no such order should be made because there are no longer any of the Respondent's costs outstanding; these having been paid in full by Mr Rosemarine's insurers prior to the written representations initially submitted. The reasons given for the offer of payment of these costs, without any acceptance of liability or that a wasted costs order could be made against Mr Rosemarine, are very difficult to understand. Those that were given in correspondence on the issue made little sense, for example, there was no prospect of further costs being incurred as to the dispute of quantum or costs generally (save for any application for permission to appeal the decision which is not avoided by the payment of costs in any event) nor any prospect of the Applicants' position being prejudiced. It would also be wholly unusual for a professional individual to be concerned about the Respondent 'being left out of pocket' in a case which ultimately was only on the highly contested issue of liability for costs.

 

187.       The only basis for the submission that once costs have been paid no order should be made is that the wasted costs jurisdiction is compensatory rather than punitive and therefore not appropriate where the Respondent's costs have already been paid. However, the fact of payment, in advance of any decision does not affect the principle of liability for a wasted costs order. Further, whether well intended for the reasons set out in the correspondence from WBD or otherwise, the appropriateness of such payment in circumstances where there is no admission of any improper, unreasonable or negligence conduct would at least be questionable as a matter of principle as it could be inappropriately used as a means of seeking to avoid the making of a wasted costs order or the consequences thereof.

 

188.       In all of the circumstances of this case, the making of a wasted costs order is appropriate, the practical result, primarily caused by the delay in the hand-down of this decision and Mr Rosemarine's proactive insurers, is simply that such order has been satisfied already.

 

Quantum of costs

 

189.       Finally, I deal with the issue of quantum of costs. On the basis that this substantive hearing was only as to the issue of costs, it was not only part of the procedural rules but also reasonable to expect the parties to have attended that hearing properly prepared on that issue, including with a schedule of costs and to allow court time to be more effectively used, as well as the parties' own resources, by including summary assessment of costs. The Respondent filed a costs schedule as required but the Applicants did not, initially claiming that it would take too long (despite adequate notice of the issue of costs and the hearing date having been given and Counsel, who should reasonably be expected to be aware of the procedural requirements) and that it would be too complex. A document headed schedule of costs but which was not one, in form or substance, was filed shortly before the hearing but not suitable for use for the assessment of summary costs. I am therefore unable to make any assessment of the Applicants' reasonable costs due to their failure to comply with basic requirements and directions for the same. This is a matter which should be taken into account should any future detailed assessment of costs be required as it is likely that the Respondent will incur yet further costs unnecessarily for a matter which could and should have been dealt with by the Upper Tribunal at this substantive hearing only on costs.

 

190.       I would also reiterate to the Applicants that the award of costs to them is for their reasonable costs only up to 30 June 2020 and my view is that the costs indicated on their behalf so far, in excess of £33,000, are very far in excess of what is reasonable in the context of this case and are grossly disproportionate.

 

191.       In relation to the Respondent's costs, I make a summary assessment of her costs from 1 July 2020 to the date of hearing in the sum of £5998. The costs schedule submitted contains reasonable costs incurred in this period, which have not been challenged in substance as to quantum (as opposed to an award of costs in principle) by the Applicants.

 

Professional conduct

 

192.       The notice to show cause also gave Mr Rosemarine the opportunity to make representations as to his professional conduct in these proceedings and specifically during the oral hearing. A number of examples have been given throughout this decision of poor and inappropriate conduct, to which can be added unprofessional conduct towards Ms Thelen during the hearing (for example, calling her by her first name and accusing her of submitting a factually incorrect skeleton argument) and unprofessional presentation of documentation (including hand written commentary on documents as well as typed commentary altering original documents in the bundle; documents which are not as described and which include excessive use of bold, underlining and large fonts).

 

193.       The written representations as to Mr Rosemarine's conduct in this application for Judicial Review relied heavily on the matters already raised in response to the notice to show cause as to wasted costs. It is said that Mr Rosemarine did not act poorly, inappropriately or unreasonably in continuing to pursue a remedy not achieved, notwithstanding a partial success and the fact that the Respondent ultimately granted entry clearance on essentially the same application as originally made (with some updating confirmation) justified the manner in which litigation was conducted to achieve a favourable and swift outcome for the Applicants which would not have otherwise been achieved had Mr Rosemarine not acted in the way in which he did.

 

194.       In relation specifically to Mr Rosemarine seeking indemnity costs on behalf of the Applicants, this was reasonably pursued in circumstances where the Respondent had been obstructive from the outset, had unreasonably refused the Applicants' applications on several occasions, had refused to properly engage with the Applicants in the pre-action process and would not disclose the algorithm or policy and guidance documents sought pre-action in the application. In such circumstances, there is precedent for an award of indemnity costs where the defendant acts carelessly or fails to make appropriate disclosure, such as in R (O) v Secretary of State for the Home Department) [2010] EWHC 709 (Admin). Further, it is said to be an arguable error of law for the Upper Tribunal to have refused the request for indemnity costs in failing to consider the binding precedent in R (O)

 

195.       In relation to the request to set aside Judge McWilliam's refusal of permission to apply for Judicial Review on the papers, Mr Rosemarine was successful in overturning the refusal and the costs order. However, the application to set aside itself was refused as procedurally inappropriate.

 

196.       It was said to be appropriate for Mr Rosemarine to argue that the Respondent's Acknowledgment of Service was out of time and that an application to reinstate the proceedings be made when it was struck out due to an administrative error. Further, it was neither poor nor inappropriate for Mr Rosemaine to advise the Applicants to seek an order that the Respondent should make a fresh decision within a period of one month in all of the circumstances and that for the period from 23 September 2020 to 2 October 2020, Mr Rosemarine acted correctly and appropriately through is efforts to resolve the position to avoid the substantive hearing.

 

197.       In relation to Mr Rosemarine's conduct towards Ms Thelen during the hearing, it is submitted that this was not unprofessional and went no further than the normal challenges to an opponent in a contentious hearing.

 

198.       Overall, it is submitted Mr Rosemarine provided a competent standard of work to his clients and at all times observed his duty to the Court in the administration of justice, such that there was no breach of any of the BSB Handbook Core Duties. Although some of the written work included varying font sizes, bold and underlining, this was used to emphasise points and highlight issues; and resulted from the constraints of Mr Rosemarine preparing documentation on his own computer without any IT assistance, or on many occasions, applications were prepared by litigants in person (albeit no specific applications or examples were identified in the submissions).

 

199.       My conclusions as to Mr Rosemarine's professional conduct go hand in hand with the matters already set out throughout this judgment, in particular the reasons already given for the making of a wasted costs order against him for the Respondent's costs in the period from 1 July 2020. There is little that needs to be specifically added to this. For the reasons already given, Mr Rosemarine failed to engage with the Upper Tribunal or the Respondent in a professional or competent manner. This included pursuit of applications since 1 July 2020 without merit or proper foundation (an example of which is set out above in relation to one of the applications for indemnity and/or wasted costs); he proposed consent orders which were unreasonable and irrational; he made submissions which were wholly unprofessional and inappropriate (both in writing and orally, in substance and in the manner of their presentation) and even if the Applicants specifically instructed him to proceed in this way, that conduct fell far short of the standards reasonably to be expected taking into account Counsel's professional duties to the Upper Tribunal. In all of the circumstances, a copy of this decision will be referred to the Bar Standards Board, together with the approved transcript of the hearing on 2 October 2020 and such documents as are required from the Upper Tribunal file.

 

Permission to appeal

 

200.       At the time that it was initially planned to hand down this decision in January 2021, there were significant restrictions in place due to the Covid-19 pandemic such that it was proposed that no oral hearing would be listed for the hand down of the decision, with any consequential orders or applications to be made in writing and dealt with on the papers. This included any application(s) for permission to appeal and corresponding extensions of time for the same were given to the same dates as for written representations on behalf of Mr Rosemarine.

 

201.       In accordance with these directions, on 5 May 2021 the Applicants made a written application for permission to appeal the decision that they were not entitled to their reasonable costs from 1 July 2020. The application was supported by a written statement from Mager Jamarkani as representative of the Applicants and Interested Party. The majority of that document is directed to the notice to show cause to Mr Rosemarine in relation to the issue of wasted costs and includes statements that a number of a points during the hearing and in the draft judgment initially circulated were prejudicial and punitive against Mr Rosemarine, as well as punishing to the Applicants in terms of costs.

 

202.       In relation to the substance of the costs claim (not wasted costs), the statement refers to an appropriate rejection of the Respondent's proposed consent order in July 2020 on the basis of the "outrageous" request for an indefinite "4 months from the date of sealing absent special circumstances" time for reconsideration of the applications; contrary to the Respondent's guidance that a decision on an application for entry clearance should be given within three weeks - a matter which it was said the Respondent was under a duty to draw to the attention of the Upper Tribunal in this application. The statement further refers to the Applicants' circumstances and unfairness in the handling of their applications for entry clearance as visitors made in August 2019 and the concern of a further refusal when the applications were reconsidered.

 

203.       After lengthy criticisms of the Respondent (in substance the same as those made during the course of this application for Judicial Review and in oral submissions on 2 October 2020), the only possible error of law identified in the statement is that I failed to taken into account that it was only because of the repeated pressure on the Respondent by Mr Rosemarine, together with continuing judicial scrutiny, that the Applicants' visas were ultimately granted, or granted as quickly as they were. The reasons identified for this again rehearsed the history of proceedings and alleged bad faith by the Respondent, with the timing of the grant of visas said to prove the unreasonable periods for reconsideration previously offered and the positive outcome because of the maintenance of pressure from the Judicial Review application.

 

204.       Finally it was also stated that the unavoidable complexities of this application for Judicial Review, which caused far higher costs than a normal High Court case, were all overlooked by the Upper Tribunal.

 

205.       The application for permission to appeal is refused. Despite the lengthy statement submitted in support of it, no arguable errors of law are identified in the costs decision in relation to the Applicants and the document fails to engage in the reasons given for the decision that the Applicants are only entitled to their reasonable costs up to 30 June 2020. The matters referred to as to the procedural history and correspondence between the parties have all been fully taken into account.

 

206.       There is no application for permission to appeal by or on behalf of Mr Rosemarine against the wasted costs order and in any event I refuse permission to appeal as there is no arguable error of law in my decision on this.

 

 

 

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