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

An appellate court may interfere with a costs order where the judge erred in principle, considered or omitted a relevant feature, or reached a wholly wrong result through an unfair balance of the factors.

Failure to follow a judicial review pre-action protocol should not materially affect costs where compliance would not have avoided the proceedings. Success is assessed by examining the substance of the claim and the relief obtained. A claimant who secures all the practical relief sought may be overwhelmingly successful despite ambiguity in the pleadings, although that ambiguity may justify a proportionate reduction in recoverable costs.

The appellant sought judicial review of the certification under section 94(3) of the Nationality, Immigration and Asylum Act 2002 of her asylum and human rights claims as clearly unfounded. The certification prevented an in-country appeal. After permission was granted in relation to the Article 8 claim, the Secretary of State withdrew the relevant certificate and conceded an in-country appeal.

The parties settled the substantive proceedings but referred costs for determination on written submissions. Mitting J made no order for costs, relying on the lawfulness of the removal directions, non-compliance with the pre-action protocol, the supposed failure of a significant part of the claim and the omission of an earlier immigration appeal from the grounds.

The appellant appealed against the substantive costs order. The central questions were whether those reasons disclosed an appealable error and, if so, what costs order should replace it.

1. Appeal allowed. The order making no award of costs in the judicial review proceedings was significantly flawed. It was quashed and replaced with an order requiring the Secretary of State to pay 70 per cent of the appellant’s reasonable costs.

2. Under rule 44.3 of the Civil Procedure Rules 1998, an appellate court may interfere with a costs order where the judge erred in principle, omitted or considered a feature which should or should not have been considered, or reached a wholly wrong decision by failing to balance the relevant factors fairly. The circumstances include the parties’ conduct and the extent of their success.

3. The complete failure to comply with the judicial review pre-action protocol did not justify the order below. Although there was enough time to communicate with the Secretary of State before issuing proceedings, her detailed acknowledgment of service defended the claim in every respect. Even meticulous compliance would therefore have left it necessary to commence judicial review and pursue the claim until permission was granted. The non-compliance was causally insignificant, and reliance upon it was an error.

4. Mitting J also erred in treating the asylum challenge as a significant part of the claim which had failed. The grounds, read as a whole, focused essentially and exclusively on the Article 8 claim. The appellant’s object was to remove the certification which denied her an in-country appeal, and she obtained that relief. For the purpose of rule 44.3(2), she was overwhelmingly the successful party.

5. The omission of an earlier immigration appeal carried limited weight because the circumstances supporting the later Article 8 claim had not existed at that earlier stage. Nevertheless, references to asylum created sufficient ambiguity to justify the Secretary of State’s understanding that the asylum certification might also be challenged. A 30 per cent reduction was therefore just.

6. The separate order refusing the appellant’s wasted-costs application was not appealed. Because it concerned a genuinely distinct application, it did not affect the appropriate order for the substantive judicial review proceedings.

1. Court of Appeal (Civil Division): The appeal was allowed. The no-order-for-costs ruling was quashed and the Secretary of State was ordered to pay 70 per cent of the appellant’s reasonable costs.

2. High Court, Administrative Court: After the substantive judicial review proceedings were settled, Mitting J determined costs on written submissions and made no order for costs. He separately made no order on the appellant’s wasted-costs application.