Roland Okechukwu Okondu & Anor v Secretary of State for the Home Department

Tribunals, Courts and Enforcement Act 2007, section 29 gives the Upper Tribunal a discretionary wasted-costs jurisdiction in all proceedings. It may be exercised against representatives of either a successful or unsuccessful party where improper, unreasonable or negligent conduct causes costs to be wasted.

Representatives owe an overriding duty to the Tribunal. They must not advance submissions known, or which they should know, to be false or inconsistent with their own evidence. Urgency does not end the duty to investigate, verify and correct an application after service. A weak or unarguable case may properly be advanced, but not by professionally improper means.

Two renewed applications for permission to apply for judicial review were considered together because each raised wasted-costs issues concerning the applicants’ solicitors.

In Abdussalam’s case, the grounds materially overstated psychiatric evidence and alleged matters contradicted by the expert report. In Okondu’s case, the judicial-review application contained no meaningful factual or legal basis and was lodged without the impugned decision letter or adequate inquiry.

The Tribunal considered whether permission should be granted, whether the solicitors should pay the Secretary of State’s costs under Tribunals, Courts and Enforcement Act 2007, section 29, and whether either firm should be referred to the Solicitors Regulation Authority.

1. Permission was refused in both cases. Abdussalam’s grounds misrepresented or contradicted the medical evidence and disclosed no arguable error in the conclusions on Articles 3 or 8. Okondu’s application was devoid of relevant facts, particulars, evidence and engagement with the challenged decision.

2. Section 29 of the Tribunals, Courts and Enforcement Act 2007 confers a discretionary power to order representatives to pay wasted costs. Read with rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the jurisdiction applies in all Tribunal proceedings. It is not confined to the losing side and may apply where a successful party’s conduct has caused the other party unnecessary expense.

3. Following Ridehalgh v Horsefield [1994] EWCA Civ 40, the Tribunal used the ordinary professional meanings of improper, unreasonable and negligent conduct. In Abdussalam’s case, advancing grounds inconsistent with the firm’s own expert evidence was improper, unreasonable and negligent. The firm was ordered to pay the Secretary of State’s summarily assessed costs of £1,492 inclusive of VAT.

4. In Okondu’s case, the solicitors failed to make adequate pre-service inquiries and then failed, over several months, to verify and correct the defective application. A statement of truth requires responsible advisers to do their best to verify the facts. Their professional duty continues after service, particularly where urgency initially prevents complete inquiry. The firm was ordered to pay wasted costs of £932 inclusive of VAT.

5. G Singh Solicitors were referred to the Solicitors Regulation Authority because misleading grounds had appeared in a wider series of cases, raising serious concerns about supervision and the administration of justice. No referral was made concerning Moorehouse Solicitors, as the material supported a one-off failure accompanied by an apology and remedial undertakings. The Tribunal endorsed the warning and procedure in R (on the application of Hamid) v SSHD [2012] EWHC 3070 (Admin).

• Upper Tribunal (Immigration and Asylum Chamber): renewed applications for permission to apply for judicial review were refused. Wasted-costs orders were made under Tribunals, Courts and Enforcement Act 2007, section 29.
• Secretary of State: had refused the applicants’ immigration claims and made removal-related decisions. No lower-court citation is stated.