Litigation is an expensive business, and immigration is a litigious business. As the recent brouhaha around judicial review revealed, the vast majority of judicial review cases in the High Court and on appeal up to the Court of Appeal and Supreme Court are immigration cases. On top of that are a considerable number of statutory appeals to the higher courts from immigration tribunal decisions and an increasing number of civil damages claims in the county courts for false imprisonment in the immigration detention estate. The question of who pays the lawyers is therefore an important one, not just for us lawyers but also for those forced to litigate, the Legal Aid fund that pays for some of this litigation and for the government itself, who also has its own lawyers to pay.

Generally speaking when two parties fight each other in court, the loser will pay not only their own legal costs but also the legal costs of the other side. This risk discourages unnecessary court cases, to a limited extent puts the winning party in the same financial position from which they started (minus the time and stress of going to court, which cannot be overstated) and it punishes the losing party for fighting a case that they should not have fought. In theory, anyway. In the immigration tribunal system the question of who pays is simple: you do. The tribunal cannot order one party to pay the costs of the other so each side bears its own costs with no risks of having to pay the costs of the other side. In immigration cases in the civil courts, though, such as statutory appeals, unlawful detention claims or applications for judicial review, the normal principle of ‘loser pays’ would normally be expected to apply.

However, government lawyers started to stray from this principle some time ago, fighting not to pay costs even on cases where the claimant got what they asked for, be it an agreement to reconsider, a form of immigration status or whatever. Some judges started refusing to make costs orders against the government in immigration cases. Claimant lawyers have an obligation to protect the legal aid fund and cannot in good conscience agree to bear costs when their client has won, plus the more self interested motivation that if a costs award is made then the lawyer gets paid at proper commercial rates rather than artificially low, capped legal aid rates. In private cases the client has a very clear interest to win an award of costs.

As a consequence there have been a number of important cases on the award of costs in immigration court cases in the last 18 months or so.

The first significant case was a linked judicial review, Bahta [2011] EWCA Civ 895, which had a write-up on the blog at the time. The case sought to put an end to UK Border Agency special pleading on costs (we can’t afford it, think of the public purse, etc) and Treasury Solicitor’s disingenuous insistence that cases were only ever settled for ‘purely pragmatic reasons’. The Court of Appeal held that where a claimant obtained the relief they sought at the outset, providing they had made clear what they sought and followed the pre action protocol, the claimant had ‘won’ and should have his or her costs paid.

Bahta was followed by M v London Borough of Croydon [2012] EWCA Civ 595, in which the same approach was applied to a judicial review application against a local authority in the Administrative Court. The specific case was a disputed age assessment where the claimant succeeded after protracted litigation against a local authority.

The next case was AL (Albania) [2012] EWCA Civ 710, in which Counsel for the Secretary of State left no barrel unscraped searching for a way to distinguish statutory appeals from applications for judicial review. The Court held that the normal rule of ‘loser pays’ should still apply where there is an identifiable winner, notwithstanding that fancier barristers are sometimes brought in for the higher courts, that the Secretary of State should not be discouraged from settling cases and that the Upper Tribunal might make a mistake of its own motion without the assistance of the Secretary of State.

The latest case is R (on the application of KR) v Secretary of State for the Home Department [2012] EWCA Civ 1555, another judicial review case. This adds no new principles to the earlier cases, instead turning on its own facts. The Secretary of State conceded a major part of the Claimant’s case but the judge below had made no order as to costs. The Court of Appeal overturned that decision and awarded 70% of the claimant’s costs, not awarding the full amount because the initial pleadings (in response to removal directions) had allegedly been a little ambiguous.

Money matters, and if mistakes and bad behaviour cost money then the hope is that positive change will follow. It is sometimes referred to in immigration circles as ‘polluter pays’. Given the lack of personal accountability for the officials who make mistakes and behave badly, though, this is perhaps a forlorn hope.