In the case of Awuah and Others (Wasted Costs Orders – HOPOs – Tribunal Powers) [2017] UKFTT 555 (IAC) the tribunal has decided that a wasted costs order — an order that a representative personally pay the costs incurred by the other side because of poor personal conduct — cannot be made against a Home Office Presenting Officer. They can however still be made against representatives for appellants.

This is not what one would describe as a level playing field on which the same rules and obligations apply to all players equally.

The official headnote reads:

(i)            The First-tier Tribunal (“FtT”) is not empowered to make a Wasted Costs Order (“WCO”) against a Home Office Presenting Officer (“HOPO”).

(ii)          The relationship of Secretary of State and HOPO is governed by the Carltona principle.

(iii)        The answerability of HOPOs to the tribunal is achieved through a range of judicial functions and duties.

(iv)        In every case where a WCO is in contemplation common law fairness requires that the respondent be alerted to this possibility, be appraised of the case against him and be given adequate time and opportunity to respond.

(v)          While expedition and summary decision making are desirable in WCO matters, the basic requirements of fairness to the respondent must always be respected.

(vi)        A causal nexus between the impugned conduct of the respondent and the costs unnecessarily incurred by the aggrieved party is an essential pre-condition of a WCO.

(vii)      The tribunal’s “own motion” power to make a WCO is to be exercised with restraint.

Astute readers will wonder why the headnote continues beyond paragraph (i). The other paragraphs are “in the alternative” findings in case the tribunal is wrong about the power to make wasted costs orders and this is overturned on any appeal.

As I understand it, the tribunal’s reasoning rests on reading the Tribunals, Courts and Enforcement Act 2007 as if it included additional provisions set out only in the Senior Courts Act 1981 with reference to the Legal Services Act 2007. Even though the TCEA 2007 Act does not on its face include these additional provisions.

The apparently perverse outcome, whereby one representative in litigation is potentially subject to a wasted costs order but the other is not, is not necessarily quite such bad news as it first appears. The costs jurisdiction of the tribunal includes two powers to award costs, one being wasted costs and the other being costs for unreasonable conduct. There is a great deal of overlap between these powers, although they are not entirely synchronised.

In most circumstances involving very poor litigation by a Home Office Presenting Officer, an award of costs for unreasonable conduct could be made.

However, there is no getting away from the fact that, if the tribunal is correct, Home Office Presenting Officers are immune to personal wasted costs orders and are not, as had widely been thought, “officers of the court” with a formal duty to the court. Indeed, despute being trained and paid to represent the Home Office in the immigration tribunal, they are apparently not “professional advocates.”

The tribunal tries to suggest that Presenting Officers nevertheless have some sort of quasi-duty to the tribunal, but this is not a formal legal obligation, it is not clearly recorded in writing anywhere and it cannot be enforced, for example through a wasted costs order.

It is, I have to say, somewhat irritating that the Home Office is having its cake and eating it. In the case of Home Office v the Information Commissioner and Yeo [2016] UKFTT 2015 0213 (GRC) the Home Office argued, broadly, that Presenting Officers did enjoy the privileges and immunities of the advocate and therefore that “lines to take” were subject to professional privilege. In this new case, the Home Office argues that Presenting Officers do not enjoy the privileges and immunities of the advocate and therefore they are not subject to wasted costs orders.

The Home Office succeeds in both its arguments.