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Appeal on costs, only if the judge below is obviously wrong


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In R (MH) v Secretary of State for the Home Department [2022] EWCA Civ 1296, the Court of Appeal has given guidance on how it will consider appeals brought solely to protect a party’s position regarding costs.

The issue arose in the context of a Dublin III removal challenge. This is the EU legislation that establishes the criteria and mechanisms for determining which member state is responsible for handling an asylum claim. But this legal framework is long gone as a result of Brexit, and the client no longer faces removal to a third country. The Court found that the original legal issue raised by the appellant were not even relevant to his on-going detention claim. Therefore the appeal was academic, subject to its impact on costs.

After a lengthy judgment by Laing LJ, there is guidance from Whipple LJ, supported by Baker LJ, about how the Court should approach the issue of costs. Whipple LJ indicates that the Court of Appeal will only interfere where the judge below was obviously wrong:

“At paragraphs 49 and 50 of her judgment, Elisabeth Laing LJ comments on the strengths and weaknesses of the parties’ submissions on the appeal and suggests that the arguments are “finely poised” such that she would have been minded to refer the appeal to the CJEU if that course had still been open to this Court. In my judgment that goes beyond what is required when considering, for costs purposes, whether it is tolerably clear who would have won the appeal. In the context of this case, it is sufficient to note the careful judgment of Murray J and to conclude, as I do, that he was not obviously wrong to dismiss the application for judicial review for the reasons he gave. Not only is that sufficient, but I consider it preferable because it avoids this Court offering a lightly reasoned view in the context of arguments about costs on issues which are complex and, given that they involve the interpretation of an EU Regulation, potentially of significance.”

Given the complexity involved in immigration judicial review claims, the guidance suggests that it is highly unlikely that a party will be able to improve their costs position through an academic appeal. The Court will be reluctant to engage in consideration of the merits of the claim, even where the financial consequences for the appellant may be significant.

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Alex Schymyck

Alex is a barrister at Garden Court Chambers