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

Where judicial review proceedings are resolved by consent, the parties should take proactive steps to agree the order before the hearing. A claimant may reasonably decline a proposed order where an earlier agreed reconsideration did not resolve the underlying difficulty and the decision-maker has not adequately engaged with a material issue.

Costs on the indemnity basis remain an exceptional departure from the standard basis. The discretion is broad and is not punitive, but conduct must take the case outside the norm. Delay and inadequate engagement justified standard-basis costs through the hearing, but did not justify indemnity costs.

The applicant sought judicial review of the Secretary of State’s refusal, dated 12 November 2014, to grant leave to remain on article 8 grounds. An earlier refusal had been reconsidered under a consent order, but the applicant contended that the later decision substantially repeated it and that a removal decision should have been made.

At the hearing the parties agreed a consent order under which the Secretary of State would reconsider the decision. They left for determination whether the claim should be withdrawn or dismissed, and the costs consequences. The Tribunal expressed no view on the merits of the outstanding leave application.

1. The application was withdrawn with the Tribunal’s consent. The applicant had chosen withdrawal, and the parties accepted that either withdrawal or dismissal was acceptable under their consent order.

2. The respondent was ordered to pay the applicant’s costs up to and including 20 April 2015, on the standard basis, to be assessed if not agreed. The respondent had already accepted liability for reasonable costs to 8 April 2015.

3. The applicant was entitled to be cautious before accepting the respondent’s proposed consent order. The earlier consent order had produced a reconsidered decision which was virtually identical to the former decision. It was also reasonable to expect fuller engagement with the applicant’s request for an appealable removal decision. The respondent made insufficient effort to agree the order before the hearing and gave no further response after 8 April 2015. The Tribunal applied the guidance in Muwonge v Secretary of State for the Home Department (consent orders: costs: guidance) [2014] UKUT 00514 (IAC) concerning proactive steps to achieve agreement.

4. Indemnity costs were refused. Applying Balmoral Group Limited v Borealis (UK) Limited [2006] EWHC 2531 (Comm), the Tribunal held that such costs are a departure from the norm and require circumstances outside it. The respondent’s conduct did not meet that threshold. As explained in Three Rivers District Council v Governor and Company of the Bank of England [2006] EWHC 816 (Comm), indemnity costs are not punitive but are intended to produce a fairer result for the receiving party.

5. When handing down judgment, the Tribunal considered permission to appeal under rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008. There was no arguable error of law, so permission was refused.

• Upper Tribunal (Immigration and Asylum Chamber): This judicial review challenge to the refusal of leave to remain was resolved by a consent order. The application was withdrawn, with costs awarded to the applicant on the standard basis through the hearing.
• Earlier proceedings: An earlier judicial review concerning a refusal dated 29 April 2014 ended in a consent order of 8 September 2014 requiring reconsideration and payment of the applicant’s reasonable costs. The later refusal of 12 November 2014 led to the present proceedings.