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Guidance on appealing Upper Tribunal costs decisions to the Court of Appeal


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President McCloskey gives guidance on appealing Upper Tribunal costs decisions to the Court of Appeal in the case of R (on the application of Soreefan and Others) v Secretary of State for the Home Department (judicial review – costs – Court of Appeal) [2015] UKUT 594 (IAC). The headnote:

(i) An appeal lies to the Court of Appeal against a costs order of the Upper Tribunal made in immigration judicial review proceedings.

(ii) In determining cost issues the Upper Tribunal will apply M v London Borough of Croydon[2012] EWCA Civ 595.

(iii) Provided that a costs decision of the Upper Tribunal is in harmony with established principles and has a tenable basis, permission to appeal to the Court of Appeal is unlikely to be granted because cost decisions involve a substantial measure of discretion dependent upon one particular factual matrix.

(iv) In judicial review proceedings where permission to appeal is not determined at a hearing, the time limit for applying to the Upper Tribunal for permission to appeal to the Court of Appeal is one calendar month, beginning on the date immediately following the day upon which the Tribunal’s substantive decision was sent and ending on the corresponding date in the immediately succeeding month.

(v) This time limit is capable of being extended in accordance with established principles and giving effect to the overriding objective.

(vi) Every Permission to Appeal (PTA) application must be made in writing. There is no prescribed form.

(vii) In judicial review cases, the prescribed fee for an application for permission to appeal to the Court of Appeal is presently £45.00. Such applications do not require notice to the other parties.

(viii) The substantive requirements for every permission to appeal application are enshrined in rule 44(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 and are of cardinal importance.

(ix) A failure to comply with rule 44(7) engages the Upper Tribunal’s discretionary strike out powers under rule 8. The Tribunal will assess in particular the nature and gravity of the non-compliance and will give effect to the principles in R (SN) v SSHD (striking out – principles)IJR [2015] UKUT 227 (IAC).

The President is rather critical of the conduct of the solicitors in the case:

(44) Accordingly, in all three cases, the “application” for permission to appeal consisted of a bare letter, comprising seven lines and approximately 70 words. It is in this context that the sequence of events thereafter assumes importance. As noted in [2] – [6] above, the letters from the Applicants’ solicitors in the first two cases were followed by a letter dated 01 July from a Lawyer of the Upper Tribunal, identifying a forthcoming hearing, (on 21 July 2015), and politely requesting compliance with rule 44(7), together with certain other particulars. The Applicants’ solicitors chose to ignore this letter. That a conscious choice was made is clear from their submissions at the hearing. The only further communication received from them was a letter dated 21 July 2015 suggesting that all three cases be listed together. This had already been arranged. The sustained failure of the Applicants’ solicitors to comply with rule 44(7) resulted in the wasted hearing which materialised on 21 July 2015. At this hearing the Applicants’ representative brazenly sought to justify the non-compliance with the rule, coupled with their failure to make any reply to the letter of 01 July 2015. It was argued that there was no need to comply with rule 44(7) or to respond to the aforementioned letter because they had earlier, in response to a direction issued by the Upper Tribunal Judge to both parties, provided a written submission on costs. This occurred in advance of the impugned costs decisions.

(45) It became clear at both the wasted hearing conducted on 21 July 2015 and the further hearing transacted on 09 September 2015 that the Applicants’ solicitors had no insight into the inalienable and unambiguous obligation to comply with rule 44(7) and, more generally, to co-operate with the Upper Tribunal in compliance with the overriding objective. They consistently adopted a position of introspective righteousness and defiance. This attitude was manifest to the very end when, at the commencement of the second of the aforementioned hearings, their representative attempted to make a submission based on rule 45(1) which had not been notified previously to either the Respondent’s representatives or the Tribunal. Sadly, our attempts to highlight the gravity and consequences of this discrete misdemeanour fell on deaf ears. Furthermore, notwithstanding the events on 21 July 2015, the default of the Applicants’ solicitors in complying with rule 44(7)(b) endured thereafter. During the seven weeks which elapsed between the two hearing dates, they made no acceptable attempt to rectify same.

A wasted costs order against the solicitors was considered but not awarded on the basis that there had been no prior warning and that applications for permission to appeal are supped to be ex parte anyway.

If you are interested in the issue of costs in immigration cases, take the full Free Movement costs course including a podcast interview with Jawaid Luqmani (2 CPD) or take a look at my ebook on the subject, which includes how to calculate costs as well as guidance on procedure:

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.