Kerry Underwood

COSTS CHAOS BETWEEN COURTS AND TRIBUNALS

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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

JH (Palestinian Territories) v Upper Tribunal of the Immigration And Asylum Chamber & Anor [2020] EWCA Civ 919

the Court of Appeal, in a judgment so riddled with technical initials and abbreviations as to be almost incomprehensible, and to make Kafka seem like a light read, considered the validity of its own decision in

R (Faqiri) v Upper Tribunal (Immigration and Asylum Chamber) [2019] EWCA Civ 151

where it held that an order for costs could be made in favour of a successful claimant in CPR 54.7A proceedings against the Secretary of State for the Home Department, even though he was not a defendant but an interested party who had not actively participated in the proceedings.

The issues in the case here were, for all intents and purposes, identical.

CPR 54.7A deals with Judicial Review of decisions of the Upper Tribunal and the rule applies where an application is made, following refusal by the Upper Tribunal of permission to appeal against a decision of the First Tier Tribunal, for Judicial Review –

(a) of the decision of the Upper Tribunal refusing permission to appeal; or

(b) which relates to the decision of the First Tier Tribunal which was the subject of the application for permission to appeal.

Given the separate sets of rules dealing with costs in different jurisdiction there was a dispute about whether the Administrative Court, subject to the general Civil Procedure Rules, could remit the issue of the costs in the CPR 54.7A proceedings to the Upper Tribunal where costs are subject to Section 29 of the Tribunals Courts and Enforcement Act 2007, which gives the relevant tribunal full power to determine by whom and to what extent costs are to be paid.

The governing rules are the Tribunal Procedure (Upper Tribunal Rules 2008).

The Court of Appeal held that there must be an order for costs made by the Administrative Court at the conclusion of the CPR 54.7A proceedings but that order cannot be transferred to the Upper Tribunal, whose costs are governed by a different regime.

An appellate court cannot make a costs order effective in an appeal in a separate jurisdiction, governed by other enactments and different rules of court.

The costs of the CPR 54.7 proceedings cannot be regarded as “of and incidental to” the costs of the appeal.

The Upper Tribunal dealing with the appeal proceedings is not authorised by statute or rules of court to make an order in respect of the costs of the proceedings in the Administrative Court.

Here, the Court of Appeal said that this jurisdictional issue could be dealt with by transferring the Judicial Review proceedings to the Upper Tribunal in relation to the application for costs.

That had the effect of importing the CPR 44 General Costs Rules into the Upper Tribunal’s assessments of costs of the Judicial Review proceedings.

 

Comment

All costs in all proceedings should be contained in one document, with different rules for different tribunals as necessary, but all in one document and with as much unity as possible.

For example, the General Costs Rules in most tribunals could be covered by the statement that generally there will be no order for costs absent unreasonable behaviour.

The current scattering of costs rules across loads of different sets of rules, and in the case of the Civil Procedure Rules scattered throughout the rules themselves, is what leads to the huge volume of cases on costs.

I am not talking about assessment of costs; I am talking about the endless litigation about costs principles, and virtually all of which would be unnecessary if the rules were written clearly in the first place.

Written by kerryunderwood

August 6, 2020 at 9:39 am

Posted in Uncategorized

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