Refugee Legal Centre, R (on the application of) v Secretary of State for the Home Department

This was a case-specific consent order concerning costs. It established no considered rule on protective or pre-emptive costs orders. The court stressed that two members had not participated in the matter and that the order had been made without full argument. It should therefore not be treated as a considered Court of Appeal determination of the substantive issues or of costs principles.

The Refugee Legal Centre appealed from the Administrative Court (Collins J) against the Secretary of State for the Home Department. Its lawyers had acted pro bono, and the appellants sought protection from an adverse costs order rather than costs in their favour.

Lord Justice Brooke had previously made a protective costs order in circumstances explained in an oral judgment. Before the substantive appeal, which was listed for the first week of October 2004, the Secretary of State consented to an order dealing with costs. The court had to decide whether to make that consent order.

1. Application granted. The court made a consent order that there be no order for costs at the hearing of the substantive appeal.

2. The order followed the Secretary of State’s consent and the court’s conclusion that it was appropriate in the particular circumstances. Those circumstances included that the Refugee Legal Centre’s lawyers had acted pro bono, so that the appellants were seeking protection against adverse costs rather than a reciprocal right to recover their own costs if successful.

3. The court expressly confined the significance of the order. Lord Justice Brooke stated that two members of the court had not been involved in the matter and had only been informed the previous day that a consent order would be made. The order was therefore not a considered Court of Appeal ruling after full argument on the issues in the appeal or on the law governing costs orders.

4. At the appellants’ request, the court directed that their list of authorities be annexed as a schedule to the judgment. The schedule did not form part of any reasoned consideration of those authorities.

• Court of Appeal (Civil Division): On the appeal from the Administrative Court, made a case-specific consent order that there be no order for costs at the forthcoming substantive appeal hearing: [2004] EWCA Civ 1296.
• Administrative Court: The appeal was from a decision of Collins J. Its citation and disposition were not stated in the judgment.