AL (Albania) & Ors v Secretary of State for the Home Department

An appellant who obtains the relief sought through the consensual disposal of a statutory appeal from the Upper Tribunal is ordinarily the successful party for costs purposes. The general rule in CPR 44.3 therefore usually entitles the appellant to costs, unless particular conduct or another case-specific feature justifies a different order.

There is no general default of no order as to costs in such appeals. The court may nevertheless make no order where success cannot fairly be identified without a disproportionate investigation. An appellant is not ordinarily disentitled merely because permission was refused by the Upper Tribunal or the case was refined before the Court of Appeal.

Three immigration appellants obtained benefits after bringing statutory appeals from the Upper Tribunal. AL and FN secured consent orders allowing their appeals and remitting their cases. DH obtained reconsideration of his application for leave to remain, which was subsequently granted. The parties left costs for determination by the Court of Appeal.

The appeals raised a common question: how costs should be determined when a statutory appeal from the Upper Tribunal is resolved by consent and the appellant obtains a remittal or other substantive benefit. The court considered the discretion under CPR 44.3, the distinctive features of statutory appeals, and guidance developed in settled judicial review proceedings.

1. Disposition. The court unanimously ordered costs in favour of each appellant. Each was the successful party and no conduct or other feature justified departure from the general rule.
2. CPR 44.3 applies to statutory appeals from the Upper Tribunal without any context-specific exception. Where an appellant is clearly identifiable as successful, CPR 44.3(2)(a) will usually entitle the appellant to costs. A different order may be appropriate because of particular conduct, difficulty in identifying success, or an inability to decide the issue without disproportionate investigation.
3. A consent order allowing an appeal and remitting the case under section 14(2) of the Tribunals, Courts and Enforcement Act 2007 necessarily proceeds on the basis that the Upper Tribunal's decision was wrong in law or unjust through procedural irregularity. A respondent cannot alter that jurisdictional consequence by describing the alleged error as merely arguable or the settlement as pragmatic.
4. The approach to settled claims explained in M v London Borough of Croydon [2012] EWCA Civ 595 is relevant. A party obtaining all the relief sought will ordinarily recover costs. Partial success or a compromise which does not correspond with the claims may make the successful party harder to identify. No order may be appropriate where a fair decision would demand disproportionate expenditure of judicial time.
5. The court rejected a default rule of no order as to costs for settled statutory appeals. It declined to follow Sengoz v Secretary of State for the Home Department [2001] EWCA Civ 1135 to the extent that it suggested such a default. The caution expressed in BCT Software Solutions Ltd v C Brewer & Sons Ltd [2004] CP Rep 2 remains relevant, but cases in which it prevents a positive order should be relatively rare in this appellate context.
6. An appellant's failure to obtain permission from the Upper Tribunal, later refinement of the grounds, or use of more senior counsel in the Court of Appeal does not ordinarily amount to conduct disentitling the appellant to costs. The statutory sequence, short time limits and greater requirements of Court of Appeal proceedings explain the additional work and expense.
7. AL obtained the remittal sought after the Secretary of State abandoned arguments previously accepted by the Upper Tribunal. FN likewise obtained an order allowing his appeal and remitting the case. DH obtained substantially the relief sought only after unnecessary proceedings in the Court of Appeal. Each was therefore entitled to costs.

• Court of Appeal (Civil Division): The underlying statutory appeals were resolved by consent or compromise. In [2012] EWCA Civ 710, the court ordered the Secretary of State to pay each appellant's costs.
• Upper Tribunal (Immigration and Asylum Chamber): AL and FN were refused relief and permission to appeal. Their Court of Appeal proceedings resulted in remittals. In DH's case, the Upper Tribunal allowed the Secretary of State's appeal before the dispute was compromised during DH's application for permission to appeal.
• First-tier Tribunal: AL had been unsuccessful. In DH's case, the Immigration Judge found that his application had been properly completed and accepted the supporting evidence as truthful and accurate. The earlier disposition of FN's case is not stated in detail.