Waleed Khan & Ors, R (on the application of) v The Secretary of State for the Home Department

The Upper Tribunal may make a common or generic costs order even where related claims have not been consolidated. Such an order requires a reliable factual basis. The party seeking it must identify both the costs properly common to the relevant claims and the cases among which those costs should be apportioned.

In a judicial-review permission application, the ordinary Mount Cook restriction limits a successful respondent’s recoverable costs to work properly attributable to considering the claim and preparing an Acknowledgment of Service. General advice may be recovered only to that extent. A global figure divided by an unproved number of claims cannot justify an additional common-costs award. The restriction may be displaced where a claim is hopeless or is persisted in after its hopelessness has been demonstrated.

Seven applicants brought judicial-review claims arising from decisions connected with alleged fraud in English-language tests administered by Educational Testing Services. The Secretary of State sought, against each unsuccessful applicant, an apportioned contribution to counsel’s fees incurred in developing a general response to a large number of such claims.

The proposed contribution was calculated by dividing total counsel’s fees of £29,745.80 by 2,539 purported ETS claims. The application was considered alongside sample permission applications. The issue was whether the Tribunal could, and should, make a common costs order in addition to costs attributable to the individual Acknowledgment of Service.

1. The application for common costs was refused. The Tribunal had jurisdiction under Tribunals, Courts and Enforcement Act 2007 to make a common or generic costs order in an appropriate case. Formal consolidation or a formal connection between every claim was unnecessary. However, jurisdiction did not remove the need for a sound factual basis for apportionment.

2. The Secretary of State had not established that the whole proposed sum was common to the cases against which it was claimed. Under Mount Cook Land Ltd v Westminster City Council [2003] EWCA Civ 1346, a respondent successfully resisting permission for judicial review ordinarily recovers only costs attributable to considering whether to defend and to preparing an Acknowledgment of Service. Work incurred after an Acknowledgment of Service in an individual case could not be attributed to that case. The evidence did not show that the full counsel’s-fee figure pre-dated every relevant Acknowledgment of Service.

3. The proposed divisor was also unproved. It was unclear whether the stated number comprised Tribunal claims, High Court claims involving detention challenges, appeals, or all ETS-related decisions. Advice relevant to detention claims would not necessarily be common to Tribunal claims without such a challenge. Dividing one unestablished figure by another was not a sound basis for a costs order.

4. The indemnity principle and the risk of double recovery reinforced that conclusion. General advice relevant to an Acknowledgment of Service could be included in the costs of that document, but did not obviously justify a separate addition. Detailed assessment would be disproportionate to a disputed individual sum of £11.72 and would require extensive investigation across the wider group of claims.

5. Accordingly, in successful permission applications the Secretary of State could recover costs on the ordinary Mount Cook basis. Preparation costs were recoverable only if properly attributable to an Acknowledgment of Service resisting permission, rather than to a complete defence. The Tribunal indicated that the Mount Cook exceptions could apply where a hopeless ETS claim was renewed for an oral permission hearing or persisted in after its hopelessness had been demonstrated.

not stated in the judgment.