The case of R (on the application of Muwonge) v Secretary of State for the Home Department (consent orders: costs: guidance) (IJR) [2014] UKUT 514 (IAC) makes for interesting law and interesting reading. It is, apart from anything, the first case I can immediately recall featuring a Prologue, a section entitled The Plot and and an Epilogue and which opens and closes with quotation from Hamlet. More importantly for litigants in person and claimant lawyers, though, it should put an end to dodgy dealing by Treasury Solicitors when it comes to costs.

The case concerns the over-aggressive litigation tactics of at least some individuals working at Treasury Solicitors, effectively the central government legal department. Frankly I’ve seen cases that ought to be a matter of regulatory investigation, but the tribunal does not here feel the need to threaten such sanctions. In short, Treasury Solicitors have been resisting costs where they cannot reasonably be resisted and, worse, attempting to claim their own costs and, even worse, allowing cases to proceed to a hearing because of failure to resolve the costs issue despite having conceded the case at an early stage.

That was exactly what had occurred in the present case. Acting as a litigant in person against the Government — as “veritable latter day incarnations of the biblical figures David and Goliath” as the tribunal would have it — the claimant had submitted a pre action letter, in the absence of a reply had lodged his claim and Treasury Solicitors had written back with an offer to settle the case but had suggested a time frame of three months and had asked for their own costs. This was capped by a clear threat:

“Should you choose not to agree to withdraw the proceedings, instead allowing the matter to proceed to a permission hearing …… then the Secretary of State will seek to recover her costs at the hearing”

Undaunted by Goliath’s chest beating, David had resisted and written back suggesting that was a tad unfair. No further response had been received from Treasury Solicitors and the case had ultimately come to a hearing.

The guidance is important and as well as deprecating unjustified costs claims sets some time limits for reaching agreement or otherwise on a consent order:

(i) There appears to be a practice, relatively entrenched, whereby an AOS which contains a concession, with or without an accompanying draft consent order, incorporates a claim for costs, liquidated or otherwise. In most cases, the claim for costs has no justification.

(ii) There may be cases, likely to be small in number, where an AOS which embodies a concession on behalf of the Secretary of State, with or without an accompanying draft consent order, justifiably and reasonably incorporates a claim for costs. In such cases, good practice dictates that the AOS should state, briefly, the justification for such claim.

(iii) Where a draft consent order is tabled, both parties should proactively take all necessary and appropriate steps designed to achieve consensual resolution within a period of (at most) three weeks.

(iv) Where consensual resolution is not achieved within the timescale recommended above, this should operate as a bilateral incentive to redouble efforts to do so.

(v) In every case possessing the factor of an unexecuted draft consent order, it is essential to provide the Upper Tribunal with each party’s explanation, brief and focussed, for non-execution. This explanation should be provided by both parties, in writing:

(a) Within four weeks of the date of the AOS or, if different, the date of receipt of the draft consent order.

(b) Where a case is listed, not later than five clear working days in advance of the listing date.

(c) In cases where there is any material alteration or evolution in the terms of the explanation, not later than two clear days in advance of the listing date.

(vi) It is recognised that, exceptionally, there may be cases in which for good and sustainable reasons a consent order cannot be reasonably executed until a very late stage indeed, postdating the periods and landmarks noted above. However, the experience of the Upper Tribunal to date is that consent orders are very frequently not executed and presented to the Tribunal for approval until the last moment, frequently late on the day before the scheduled hearing and that no good reason is proffered for the parties’ failure to do so at an earlier stage. This practice is unacceptable.

(vii) The practice whereby executed consent orders materialise during the period of 48 hours prior to the listing date is unsatisfactory and unacceptable in the great majority of cases. The Upper Tribunal recognises that there may be a small number of cases where, exceptionally, this is unavoidable.

(viii) In matters of this kind, parties and their representatives are strongly encouraged to communicate electronically with the Tribunal and, further, to seek confirmation that important communications and/or attachments have been received.

(ix) In determining issues of costs, Upper Tribunal Judges will take into account the extent to which the recommendations and exhortations tabulated above have been observed and will scrutinise closely every explanation and justification proffered for non-compliance.

Ultimately no order as to costs was made. Mr Muwonge had not applied for his own costs. However, the President observes that it may be possible for a litigant in person to claim some costs. He cites Morrow – v – Chief Constable of Strathclyde Police [2011] NIQB 6. It is worth mentioning here that Litigants in Person (Costs and Expenses) Act 1975 and CPR 46.5 enables a litigant in person to claim for their own time spent on the same categories of work which would have been allowed if the work had been done by a legal representative on the person’s behalf, and the recognised rate is £18 per hour. There’s a good write up here from the Law Society Gazette (albeit with an out of date reference to the CPR). There is no equivalent in the Upper Tribunal rules, but the Upper Tribunal does in judicial review cases inherit the powers and jurisdiction of the High Court so ought to be able make a costs order in favour of a litigant in person if an application is made.

Returning to Muwonge, the tribunal concluded thus:

There is a world of difference between the cabbage patch in 13^th century Poland and the spiralling events in the present case. There is nothing to admire in the tale told above. Every battle generates causalities. Mr Muwonge undoubtedly attracts this appellation, given the delays, frustration and wasted resources which he has suffered notwithstanding the early surrender he secured, to no practical avail and his ultimate success. However, and sadly, the major casualties in this litigation are the overriding objective, which was truly bruised and battered and the principle of proportionality, which has emerged wilting and shaken, bloodied but unbowed. Lessons must be learned.