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

Where parties have agreed a consent order and the order’s sealing is delayed by an administrative defect, the parties must act promptly to regularise the position and prevent unnecessary court time and expense. A claimant whose failure to do so causes an unnecessary substantive hearing may be ordered to pay the resulting costs. The court may summarily assess those costs where the amount can fairly be determined at the hearing.

Permission for judicial review had been granted on renewal. The parties subsequently agreed and signed a consent order under which the claimant obtained a right of appeal in-country. The order was not sealed because the claimant’s solicitors were not then on the record and the continuation fee had not been paid.

Those defects were later addressed, and further representations contemplated by the order were made. The claimant’s solicitors nevertheless failed to ask the court to seal the order or properly explain the position to the defendant. The matter was consequently listed unnecessarily for a substantive hearing. The court had to determine the appropriate procedural disposal and responsibility for the costs of the wasted hearing.

1. The court was satisfied that the parties had agreed a consent order following the grant of permission. The order had been signed by the claimant’s new solicitors and the Treasury Solicitor. Although the court office initially rejected it because the new solicitors were not on the record and the continuation fee had not been paid, both matters were subsequently resolved.
2. The claimant’s solicitors knew of the order and acted under its terms by submitting further representations to the Secretary of State. They should then have promptly drawn the position to the attention of the court and the defendant and sought sealing of the order. Their failure caused the case to be listed unnecessarily and led to further costs.
3. The court considered that the claimant had already obtained, through the consent order, the benefit of an in-country right of appeal. Judicial review would at most have produced a possible redetermination and potentially quashing of removal directions, which were in any event ineffective because of an injunction.
4. The costs incurred for the hearing were not reasonably incurred. The defendant’s representatives had attended at short notice at the court’s request to clarify the position, and their time was reasonably spent for that purpose. The court therefore summarily assessed the costs at £1,000.
5. The claimant was ordered to pay £1,000 to the defendant, with the sum to be included in the consent order.