JE v Secretary of State for the Home Department

An appellate court’s power under rule 52.9A of the Civil Procedure Rules permits a symmetrical limit on the costs recoverable by whichever party wins an appeal from a no-costs or low-costs jurisdiction. It does not permit qualified one-way costs shifting in favour of one party, whether that party wins or loses.

An application must be made as soon as practicable. This allows reasonable time for both parties to consider their positions, but requires an application early enough for them to know the costs regime under which the appeal will proceed.

The appellant applied under rule 52.9A of the Civil Procedure Rules for an order requiring the respondent to pay her reasonably incurred court fees, preventing the respondent from recovering costs except for misconduct, and preserving the usual costs rules if she succeeded.

The application was made one week before the listed appeal from an order of the Upper Tribunal. The central issues were whether rule 52.9A authorised one-way costs shifting and whether the application had been made as soon as practicable. Following the dismissal of this costs application, the hearing proceeded and the appellant succeeded in the substantive appeal.

1. Application dismissed unanimously. Rule 52.9A(1) of the Civil Procedure Rules did not empower the Court of Appeal to make the requested one-way costs order. The applicant had also applied far too late.

2. The expression “the recoverable costs of an appeal” means the costs recoverable by the successful party, whoever that may be. Rule 52.9A concerns appeals from jurisdictions in which costs recovery is normally excluded or limited. It allows the appellate court to establish a similar, symmetrical costs regime for the appeal. It does not contemplate an order protecting only one party whether that party wins or loses.

3. That construction was supported by three considerations. First, rule 52.9A(1) concerns jurisdictions in which all parties face the same restrictions on recoverable costs. Secondly, the parties’ means, all the circumstances and the need to facilitate access to justice are considerations relevant to deciding whether a no-costs or low-costs regime should continue on appeal. Thirdly, qualified one-way costs shifting is addressed by separate rules.

4. An application under rule 52.9A must be made “as soon as practicable”. This does not mean immediately, because both parties may reasonably need time to consider their positions, including after the grant and scope of permission to appeal are known. The court declined to prescribe a universal deadline. An application must nevertheless be made sufficiently early for both parties to know the costs regime under which they are proceeding.

5. Such applications can ordinarily be determined in writing at modest cost. A challenge to the resulting determination will not be entertained unless the court has made a clear error of principle. Jackson LJ delivered the judgment; Black and Laws LJJ agreed.

1. Court of Appeal (Civil Division): The appellant’s application under rule 52.9A of the Civil Procedure Rules was dismissed unanimously in [2014] EWCA Civ 192. The hearing then proceeded, and the appellant succeeded in her substantive appeal.
2. Upper Tribunal: The appellant had appealed against an order of the Upper Tribunal. The citation and disposition below are not stated in the judgment.