Michael, R (on the application of) v Secretary of State for the Home Department

A judicial review claim may be dismissed as academic where the defendant has provided the substantive relief sought and gives an undertaking addressing any consequential procedural difficulty. The court may nevertheless record the undertaking as a condition of dismissal. Costs should reflect the parties’ conduct and the justice of the case. Where both sides have had rights and wrongs in the proceedings, the appropriate order may be that each party bears its own costs, while an earlier period of successful litigation may attract a separate costs order.

The claimant challenged decisions of the Secretary of State in judicial review proceedings. Permission had been granted on the basis that previously unavailable documents required consideration. After permission was granted, the Secretary of State withdrew the relevant certification and afforded the claimant an in-country right of appeal to the appropriate tribunal.

Because of delay and confusion about the consequences of that arrangement, the claimant’s potential appeal risked being out of time. The Secretary of State undertook not to oppose an application for permission to appeal out of time lodged within 14 days. The court had to determine whether the judicial review should be stayed or dismissed, and how costs should be dealt with.

1. Disposition. The judicial review proceedings were academic because the Secretary of State had afforded the claimant an in-country right of appeal. The claim was dismissed, subject to the Secretary of State’s undertaking not to oppose an application for permission to appeal out of time lodged within 14 days.
2. Effect of the undertaking. The undertaking was to be recorded in the order. It addressed the remaining practical difficulty arising from the lapse of time and ensured that the claimant could seek to pursue the tribunal appeal without opposition from the Secretary of State on the question of lateness.
3. Stay or dismissal. A stay was unnecessary. The proceedings had expired and served no continuing purpose once the relevant appellate opportunity had been restored and protected by the undertaking.
4. Costs. The proceedings had substance at their outset and included cogent argument. The Secretary of State was therefore ordered to pay the claimant’s costs up to 3 August 2009, when an in-country right of appeal had been conceded. For the subsequent period, neither party was awarded costs because each had rights and wrongs and the fairest order was that each side should bear its own costs.

This was a first-instance judicial review hearing. The judgment records that permission had been granted by HHJ Vosper QC, sitting as a deputy judge of the Administrative Court, on the basis that previously unavailable documentary evidence required consideration. Following permission, the Secretary of State withdrew the certification and afforded an in-country right of appeal. The High Court then dismissed the judicial review as academic, subject to the recorded undertaking.