HE v Secretary of State for the Home Department

An appellate court may interfere with a first-instance costs order only where the judge erred in principle, considered an irrelevant matter, omitted a relevant matter, or reached a wholly wrong balance.

Success must be assessed by reference to the substance and phases of the litigation. A person who secures the primary relief sought is the successful party for that phase, even if a later claim for damages largely fails. The costs order may therefore reflect the parties’ respective success during distinct phases.

When deciding whether immigration detention may continue under the Hardial Singh principles, the court must examine the whole history of the detention.

The claimant brought judicial review proceedings challenging his continued immigration detention. He sought disclosure and a declaration that the detention was unlawful, with the practical objective of securing his release. At the final hearing, the deputy High Court judge ordered his immediate release after applying the Hardial Singh principles.

The claimant then pursued damages for earlier unlawful detention. That claim succeeded only for a short period and was likely to yield nominal damages. The judge ordered the Secretary of State to pay only the claimant’s costs incurred after an earlier adjourned hearing.

The claimant appealed, contending that the costs order mischaracterised the litigation. The central issue was whether securing his release made him the successful party for the principal phase of the proceedings, notwithstanding the subsequent substantial failure of his damages claim.

1. Appeal allowed. The first-instance costs order rested on an error of principle. Although an appellate court must respect the breadth of a judge’s costs discretion, intervention was justified because the judge failed to recognise the claimant as the successful party during the principal phase of the litigation. The guidance in Roache v Newsgroup Newspapers Ltd and others [1998] EMLR 161 and KR v Secretary of State for the Home Department [2012] EWCA Civ 1555 was applied.

2. The substance of the claim up to 12.15 pm on 21 September was the claimant’s attempt to secure his liberty. His pleaded request for a declaration that his continued detention was unlawful was directed towards release, rather than an academic determination. He obtained that primary relief. The evidence and historic material assembled before the hearing were relevant to whether he should be released and could not properly be attributed solely to the damages claim.

3. Under the principles formulated in R v Governor of Durham Prison, Ex parte Hardial Singh [1984] 1 WLR 704, the court must consider the whole history when deciding whether the time has arrived to order release from immigration detention. Those principles require detention to serve the purpose of deportation, to last no longer than a reasonable period, to cease when removal cannot be achieved within that period, and to be accompanied by reasonable diligence and expedition. The historical material therefore formed part of the successful release phase.

4. The claimant was not entitled to all his costs. After securing release, he pursued a damages claim which succeeded only to a very limited extent. It was reasonable to regard the Secretary of State as the successful party in that later phase. A phase-by-phase order would have been inconvenient to assess, so the Court of Appeal re-exercised the costs discretion and substituted an order that the claimant recover 80% of his costs below. Black LJ agreed with Jackson LJ, while preserving the Secretary of State’s opportunity to make any further submission about the percentage.

1. Court of Appeal (Civil Division): The appeal was allowed in [2013] EWCA Civ 1846. The court set aside the first-instance costs order and ordered the claimant to recover 80% of his costs below.

2. High Court: A deputy judge ordered the claimant’s release from immigration detention, later held that only a short earlier period of detention had been unlawful, and awarded costs incurred after 23 August 2012. The Court of Appeal held that the costs order mischaracterised the claimant’s success.