Procedure-wise, immigration judicial reviews don’t tend to be that speedy. When you get to the end of the road, you may have run out of steam when it comes to settling the issue of costs. But if applicant / appellant representatives are to make it work in a world where public funding is either limited or not available, it is important to keep our eyes firmly on the costs game to stay ahead.

This article focuses on a few strategies to bear in mind in terms of costs and appeals of costs orders when conducting immigration judicial reviews.

Costs when cases are settled

As we all know, immigration judicial reviews that have strong prospects of success tend to settle either pre-permission or post-permission. In my experience, the cases that settle pre-permission can be the tricky ones cost-wise. The government often settles for “pragmatic reasons”, not expressly accepting that the grounds pleaded have merit. It may have indicated its willingness to settle in the acknowledgment of service, but whilst negotiations are still ongoing, your case reaches the top of the Upper Tribunal pile of permission decisions and permission is refused as the claim is “now academic”. More often than not, such refusals of permission come accompanied by “no order for costs”. What to do then?

Firstly, remember that “pragmatic reasons” is usually not good enough.  The Court of Appeal reiterated this recently in the case of R (RS) v London Borough of Brent [2020] EWCA Civ 1711. RS, represented by Duncan Lewis Solicitors, challenged by way of a judicial review claim the local authority’s refusal to issue him with a “blue badge” for parking on the basis that his medical conditions were “no longer considered to be a qualification for a disabled blue badge”. The claim settled after permission to apply was granted on the papers and both parties made submissions on costs.

The judge at first instance did not award costs as he did not accept that RS was the successful party. He also, importantly, found that the local authority should not be dissuaded from pragmatic settlements through fears of cost liability. RS challenged the costs order in the Court of Appeal.

With regards to costs when cases settle, the Court of Appeal rehearses the three categories of cases that arose from M v Croydon LBC [2012] EWCA Civ 595:

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.

Specifically in respect of a party invoking “pragmatic reasons” when seeking to settle, the Court of Appeal reminds us at paragraph 27 that “the fact that the conceding party was ‘realistic’ (i.e. pragmatic) was not an answer; they should have confronted that reality ‘before the proceedings were issued'”. This point also comes with a citation from M v Croydon:

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.

So none of this particularly new and continues to stem from the well-established authority of M v Croydon. But as the case of RS demonstrates, a shifting legislative landscape or simply the need to save funds wherever possible can trigger difficult negotiations, which then often need to be litigated.

When dealing with such cases, it is important to keep your focus on the nature of the remedies that you sought on behalf of your client and what your client is or would be achieving through a settlement. If those two align, then your client should be assessed as the winner and you should get costs, unless there is a good reason to award otherwise. Tailor your correspondence to the other side accordingly.

Negotiations on costs

In tricky cases, negotiations on the terms of a consent order — including liability for costs — can be long and sometimes protracted. It is best practice to keep the Upper Tribunal updated as to the progress of such negotiations, particularly if they are taking place prior to permission being granted. This will also help you to avoid a “no order for costs” being issued if permission is refused due to the claim being academic. There should not be a need to share every single detail of what is holding the consent order up, but short updates will help to protect your position.

Similarly, it is important to review the position as frequently as possible. If you sense that the negotiations are no longer constructive, remember that communicating this to the Upper Tribunal/High Court and taking the jump with written submissions on the terms of the order and/or on costs liability may in the end be best and more cost-effective. Revocation of entry clearance can often present such difficulties. I am currently representing an appellant, with permission, in the Court of Appeal where much of the negotiations in the Upper Tribunal proceedings were taken up with the minutiae of what decision was being challenged and what remedies the applicant could expect to achieve.  

Appealing costs orders

Should the worst happen and you are still not awarded costs, despite arguably being the winner, consider seeking permission to appeal this order.

In immigration judicial reviews, a costs order is a separate and stand-alone decision. I say this because the costs order may be made after the substantive issues raised by the claim are disposed of by way of an earlier order. Thus, if you wish to appeal a costs order, you first need to seek the lower court/tribunal’s permission for leave to appeal. Once this has been addressed and disposed of, if necessary, you may then seek permission directly from the Court of Appeal.

For immigration judicial reviews heard in the Upper Tribunal, section 13(5) of the Tribunal, Courts and Enforcement Act 2007 requires applicants to seek permission from the Upper Tribunal first, since a costs order is not an “excluded decision”. This is the case even when a costs order is made subsequent to any judgment disposing of the judicial review claim.  This very issue was considered by the Court of Appeal in Nwankwo & Anor v Secretary of State for the Home Department [2018] EWCA Civ 5 (see paragraphs 35-36).

Further reading

The Administrative Court Judicial Review Guide, which includes guidance on costs and which has recently been updated, is indispensable on all this. I would also highly recommend Colin’s costs ebook, which is free for Free Movement members.