MSM & Ors v The Secretary of State for the Home Department & Anor

Section 29(4) of the Tribunals, Courts and Enforcement Act 2007 gives both tribunals a free-standing jurisdiction to make wasted costs orders in all their proceedings. That jurisdiction is distinct from the general costs jurisdiction in section 29(1) and (2).

The restrictions imposed by section 29(3) and rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 do not limit the existence of the wasted costs jurisdiction. The reference in section 29(4) to determination in accordance with procedural rules concerns the amount recoverable, rather than whether an order may be made.

The Tribunal determined a common jurisdictional issue arising from four immigration appeals. Each had begun in the First-tier Tribunal before 20 October 2014, when the former procedural regime generally prevented that tribunal from awarding wasted costs.

In the first appeal, the Secretary of State sought wasted costs after an adjournment in the Upper Tribunal. In the other appeals, the appellants sought costs after concessions were made late in remitted proceedings. The issue was whether the Upper Tribunal, sitting on appeal or after remittal, could make a wasted costs order under section 29 of the Tribunals, Courts and Enforcement Act 2007 despite rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

1. Jurisdiction established. The Upper Tribunal held that it had power to make wasted costs orders in each application. Section 29(4) of the Tribunals, Courts and Enforcement Act 2007 is a distinct and free-standing source of jurisdiction in respect of wasted costs as defined by section 29(5).
2. The general discretionary costs powers in section 29(1) and (2) are expressly made subject to Tribunal Procedure Rules by section 29(3). Section 29(4) contains no equivalent restriction. Parliament's omission of section 29(4) from section 29(3) was significant.
3. The phrase in section 29(4), permitting an order for such part of wasted costs as may be determined in accordance with Tribunal Procedure Rules, governs the amount of an order. It does not remove or restrict the Tribunal's jurisdiction to make an order.
4. The reference to proceedings mentioned in section 29(1) is drafting shorthand. It confirms that the wasted costs power extends to all proceedings in both the First-tier Tribunal and the Upper Tribunal. It is not confined by rule 10(1) or excluded by the words “in other proceedings” in rule 10(3).
5. The Tribunal distinguished general costs from wasted costs. The latter jurisdiction is compensatory and punitive, and supports the overriding objective by addressing improper, unreasonable or negligent representation.
6. The applications were relisted for determination on their merits. Specified parties were directed to file and serve any additional submissions within 21 days, with corresponding periods for responses.

• Upper Tribunal (Immigration and Asylum Chamber): Determined a common jurisdictional issue in costs applications arising from four immigration appeals. It held that section 29(4) of the Tribunals, Courts and Enforcement Act 2007 conferred a free-standing wasted costs jurisdiction and relisted the applications for determination on their merits.
• First-tier Tribunal and Court of Appeal: The underlying appeals had variously been dismissed, set aside, remitted by the Court of Appeal, or allowed following remittal. No citation for those Court of Appeal decisions was stated.