In an apparent effort to dissuade anyone from reading the rest of the judgment in R (Sanneh) v SSHD [2019] EWCA Civ 1319, Lord Justice Jackson began ominously:

This is an appeal about costs.

The usual rule is that the loser in any litigation pays the costs of the side that wins.

But how does a court apportion liability for costs if, like Hot Chocolate’s 1978 smash hit, everyone’s a winner?

The general rules on legal costs

The “loser pays” principle is in the Civil Procedure Rules at 44.2(2):

(2) If the court decides to make an order about costs –

(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b) the court may make a different order.

The costs of going to court – fees for lawyers, experts, document preparation – are usually high, especially if the matter proceeds to trial.

Take the recent example of a cyclist found partially responsible for knocking over a pedestrian.

The issue was not so much the £4,164 he was required to pay for his part in the accident, but the £100,000 in costs demanded by the claimant’s solicitors.

Although it seems unlikely the solicitors in this case will get anything like that amount, getting your costs paid by the other side is normally a huge deal.

The case of Mr Sanneh

And so it is in immigration law.

In the case of Sanneh the claimant had been unsuccessful in almost every legal avenue he had pursued, including the majority of his claim for unlawful detention, and a challenge to the certification (as clearly unfounded) by the Secretary of State of his asylum claim.

Mr Sanneh had showed, though, that he was detained unlawfully for a four-week period. Accordingly, he argued that his costs should be paid.

The High Court had broadly agreed, determining that the Home Office would be responsible for paying 75% of his costs.

Two winners

In the Court of Appeal, the Secretary of State argued that the claimant had only succeeded as one part of a much larger claim. Jackson LJ agreed, holding that

whilst [Mr Sanneh] was a successful party in the proceedings, he was not the only successful party.

Whilst Mr Sanneh had been detained unlawfully

the Secretary of State succeeded in relation to the previous 20 months of detention and ultimately on the issue of certification. The duration of the proceedings during which costs were accumulating largely coincided with claims that were unsuccessful if not indeed unreasonable.

In a non-rousing “plague on both your houses” finish, the Court of Appeal determined that each side should pay its own costs.

Can the Secretary of State rely on this as authority to resist costs in the future where, for the most part, she had “succeeded” in not detaining someone unlawfully?

Probably not. There was a lot going on in this fact-specific judgment, and it would be difficult to divine this – or any – overarching principle relating to costs which is not already established.