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

Where a public authority withdraws a challenged decision and the claimant has thereby obtained the maximum realistic judicial-review remedy, usually reconsideration, the claimant is ordinarily the successful party for costs purposes. The court should apply the general costs rule and ask whether there is a good reason to depart from it. It should not ordinarily undertake a retrospective inquiry into who would have won at a substantive hearing.

A withdrawal prompted by authoritative confirmation that the decision proceeded on an erroneous legal basis normally constitutes success. Conversely, withdrawal may amount only to limited success where the original claim has failed and the claimant seeks to advance a new legal and factual case on appeal.

The court determined conjoined appeals and costs applications following the Secretary of State’s withdrawal of certifications that human-rights claims were clearly unfounded in Dublin II return cases.

The Italy applicants challenged proposed returns to Italy. Their proceedings were stayed pending R (EM (Eritrea)) v Secretary of State for the Home Department [2014] UKSC 12. After that decision, the Secretary of State withdrew the human-rights certifications. Collins J had awarded only the costs of commencing proceedings: Tesfay and others v Secretary of State for the Home Department [2014] EWHC 4048 (Admin).

The Malta applicants had failed before Mitting J in R (MB and others) v Secretary of State for the Home Department [2013] EWHC 123 (Admin). Their certifications were later withdrawn while they sought permission to advance a new asylum-based argument. The central issue was the proper allocation of costs after those withdrawals.

1. The Italy appeals and applications were allowed. The Secretary of State was ordered to pay the Italy applicants’ judicial-review costs up to the withdrawal of the human-rights certifications.

2. The judge had wrongly reverted to the approach in R (Boxall) v Waltham Forest LBC. The correct questions were whether withdrawal made the claimants successful and, if so, whether there was a good reason to make a different costs order. The court should not generally reconstruct the likely substantive outcome of settled public-law litigation.

3. The Italy applicants had achieved the relief realistically available in judicial review: the certifications were withdrawn and had to be reconsidered. Their challenges had raised the legal points accepted by the Supreme Court in R (EM (Eritrea)) v Secretary of State for the Home Department [2014] UKSC 12. The Secretary of State’s later reliance on the Court of Appeal’s erroneous systemic-deficiency approach, and the legal error which led to withdrawal, confirmed their success. Urgency and the removal policy also justified both issuing and maintaining the proceedings.

4. The Court of Appeal had jurisdiction under sections 15 and 51 of the Senior Courts Act 1981 to determine both the costs incurred below and the costs of withdrawn applications for permission to appeal.

5. The Malta applications resulted in no order as to costs. Although withdrawal gave the applicants a limited procedural success, their original claims had been rejected, the Supreme Court’s decision did not undermine Mitting J’s reasoning, and the remaining appeal sought to raise a new legal and factual case. Their false accounts and the novelty of the proposed point were strong reasons to refuse costs.

6. The Secretary of State’s late cross-application for permission to appeal was refused. The delay lacked a satisfactory explanation, and government departments are generally subject to the same procedural time limits as other litigants.

• Court of Appeal (Civil Division): Allowed the Italy appeals against Tesfay and others v Secretary of State for the Home Department [2014] EWHC 4048 (Admin) , and allowed the related Italy costs applications. It made no order as to costs for the Malta applicants.
• High Court, Administrative Court: Collins J awarded the Italy claimants only the costs of preparing and lodging their judicial-review claims: [2014] EWHC 4048 (Admin) .
• High Court, Administrative Court: Mitting J dismissed the Malta applicants’ judicial-review claims and refused permission to appeal: R (MB and others) v Secretary of State for the Home Department [2013] EWHC 123 (Admin) .