Latest from the Upper Tribunal on costs in judicial review proceedings:

1. Whilst no mention of the basis of costs assessment is made in the Tribunals, Courts and Enforcement Act 2007 or the Tribunal Procedure (Upper Tribunal) Rules 2008, the distinction drawn between the standard and indemnity bases by CPR 44.3(1) can properly inform the exercise of discretion by the Immigration and Asylum Chamber of the Upper Tribunal when exercising its full power to determine the extent costs are to be paid under section 29 of the 2007 Act. 

2. The distinction between the standard and indemnity bases are well-known and well-understood across the civil justice system and applied in judicial review proceedings that take place in the High Court and beyond. There is no reason not to employ it in the Immigration and Asylum Chamber of the Upper Tribunal.

In this case, the tribunal used its discretion to award indemnity costs against the Home Office after it breached a consent order promising to return the applicant’s passport within seven days.

The failure by the Executive to comply with the agreed time frame resulted in the applicant being required to initiate further judicial review proceedings. Such conduct takes this case out of the norm, and we find in the circumstances that the applicant should be awarded his costs in these proceedings on an indemnity basis.

The case is R (Butt) v Secretary of State for the Home Department (Indemnity costs) [2022] UKUT 69 (IAC).