MK (Afghanistan), R (On the Application Of) v Secretary of State for the Home Department

Permission to appeal may properly be granted where a costs decision arguably fails to address the central issue raised by the parties. In a judicial review, the lawfulness of detention or of an initial removal decision is not, by itself, a sufficient reason to refuse costs if the real issue is whether proceedings were issued prematurely. The court must consider whether delay was excusable and whether it was caused, at least in part, by the defendant’s conduct. Reasons for costs decisions may be short, but they must engage with the material explanation advanced. If an appeal succeeds for inadequate reasoning, the appellate court may make the costs decision itself and must give full reasons.

The claimant appealed from a decision of James Lewis QC in the Administrative Court refusing to award him the costs of judicial review proceedings. The dispute concerned whether the claim had been brought too late, because the Secretary of State had not had a realistic opportunity to consider fresh representations before proceedings were issued.

The claimant argued that the judge had failed to address his solicitors’ explanation for the delay, including the absence of notice of removal directions and the claimant’s detention. The Court of Appeal considered whether that omission arguably rendered the costs decision legally flawed. It granted permission to appeal. The merits of the appeal were not determined in this judgment.

1. Permission granted. The challenge to the exercise of the costs discretion was sufficiently arguable, notwithstanding that such challenges are properly difficult and the sums involved were comparatively small.
2. On a fair reading, the judge’s essential reason for refusing costs was that no cause of action arose until fresh representations had been served and the Secretary of State had a realistic opportunity to consider them. The proceedings were therefore treated as a very late application. That could, in principle, justify refusing costs despite the starting point identified in M v Croydon.
3. However, the claimant’s costs submissions had addressed the delay in detail. They explained the difficulties arising from the claimant’s detention and limited knowledge of the system, and stated that removal directions notified on 6 November had not been notified to the solicitors, who learned of them only indirectly after hours on 9 November.
4. The judge did not refer to that explanation, and it had not been challenged by the Treasury Solicitor. Although reasons for costs decisions may be short, it was arguable that failure to address the practical central issue—whether the delay was excusable and was at least partly attributable to the Secretary of State—rendered the decision flawed in law.
5. The court was not satisfied that the omission was immaterial. It could not conclude that the claimant’s explanation was obviously inadequate or that the same result would necessarily have followed after proper consideration.
6. The judgment did not determine the merits of the appeal or the ultimate costs order. The appeal was directed to be heard by two Lord Justices. The court indicated that, if the appeal succeeded for inadequate reasoning, it would make the costs decision itself and provide full reasons.

• Administrative Court, Queen’s Bench Division: James Lewis QC refused to award the claimant his costs in the judicial review proceedings.
• Court of Appeal (Civil Division): granted permission to appeal on the arguable ground that the costs decision failed to address the central explanation for delay. The appeal remained to be heard.