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

Where a claimant succeeds overall but fails on substantial issues, the court may make an issues-based costs order. It should consider all the circumstances, including the parties’ conduct and whether particular allegations or issues were reasonably raised, pursued or contested. A claimant’s success on an issue of unlawful detention does not necessarily justify recovery of all costs where other important allegations fail. The order should reflect the extent of the claimant’s success and the costs-bearing significance of the issues on which the claimant was unsuccessful.

Following an earlier judicial review judgment, the court was required to determine the appropriate order for costs. The claimant had succeeded on some issues, including a finding that the Secretary of State breached her duty of candour and had acted with conspicuous unfairness in the treatment of his asylum claim. He had failed on other substantial allegations, including deliberate concealment, bad faith, abuse of power, misfeasance in public office and part of his challenge under the Hardial Singh principles.

The Secretary of State sought an order requiring payment of only 30 per cent of the claimant’s costs. The claimant sought his costs in full, relying on his overall success and the defendant’s conduct. The central issue was whether the circumstances justified an issues-based costs order.

1. Under CPR r.44.2(4), the court had to consider all the circumstances, including the conduct of the parties and whether a party had succeeded on part of its case even if not wholly successful.

2. For this purpose, conduct included whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue under CPR r.44.2(5)(b). The relevant principles permitted an issue-based approach. The court could deprive a successful party of the costs of an issue, reduce those costs, or order payment of the unsuccessful party’s costs relating to that issue.

3. The claimant had achieved significant success. The court had found a breach of the defendant’s duty of candour from August 2012 concerning records relating to a family member, conspicuous unfairness in the treatment of the claimant’s asylum claim, and a failure to establish a real prospect of removal to Somalia within a reasonable period for the purposes of Hardial Singh principle 1. The court had also identified August 2012 as the determinable point under principle 3.

4. However, the claimant had failed on the allegation of deliberate concealment and on serious allegations of bad faith, abuse of power and misfeasance in public office. He had also failed to establish breaches based on Hardial Singh principle 4 or article 8 and section 55 of the 2009 Act. Those failures concerned substantial costs-bearing issues and justified departing from the general approach sought by the claimant.

5. The appropriate order was an issues-based order. The claimant was awarded 90 per cent of his costs, subject to detailed assessment if not agreed.