President Lane urges caution in making awards of costs against Home Office

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In one of his first decisions as the new President of the Immigration and Asylum Chamber of the Upper Tribunal, Mr Justice Lane has urged caution in making awards of costs on the basis of unreasonable behaviour. The case is Thapa & Ors (costs: general principles; s 9 review) [2018] UKUT 54 (IAC).

The appeal involved disgraced former Judge Majeed. Through no fault of his own, no-one informed him that an application for an adjournment had been made in a case, which he proceeded to dismiss. An appeal was pursued and the Home Office reserved its position as it had seen no evidence of the adjournment request in question. The appellants argued that this was unreasonable conduct and the Home Office should have conceded the case. President Lane disagrees and tells us:

(1) What emerges from the guidance in Cancino (costs – First-tier Tribunal – new powers) [2015] UKFTT 59 (IAC) is that the power to award costs in rule 9 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 is to be exercised with significant restraint and that detailed examinations of other decided cases are unlikely to assist in deciding whether to award costs under either of those rules.
(2) Section 9 of the Tribunals, Courts and Enforcement Act 2007, read with the relevant procedure rules, enables the First-tier Tribunal to review, set aside and re-decide a case where, on the materials available to the judge deciding an application for permission to appeal, an error of law has occurred and (as in the present case) a party has thereby been deprived of a fair hearing. In the present case, such a course would have avoided the need for the matter to come before the Upper Tribunal and have resulted in a more expeditious outcome.

Oddly, there has been another recent big case on costs, decided by former President McCloskey. In it, he gives guidance on when costs for unreasonable behaviour might be awarded against the Home Office. For whatever reason, the reporting committee have not yet reported it. Will they?