Gudanaviciene, R (on the application of) v Immigration and Asylum First Tier Tribunal

A successful judicial review claimant does not ordinarily recover costs from an inferior court or tribunal which took no part in the proceedings. Costs may be ordered where the tribunal engaged actively as a partisan litigant, behaved flagrantly improperly, or unreasonably declined or neglected to sign a dispositive consent order. A tribunal appearing only to provide neutral assistance ordinarily neither receives nor pays costs.

The ordinary principle that a successful public law claimant should receive costs from an opposing public authority does not displace these tribunal-specific rules. Extending routine costs liability to tribunals would conflict with binding authority and make a substantial inroad into judicial immunity.

The First-tier Tribunal refused to adjourn the appellant’s deportation appeal while she challenged a refusal of exceptional case funding. On an without-notice judicial review application, Jay J ordered that the deportation appeal should await determination of the funding challenge. The Tribunal did not participate in those proceedings and subsequently adjourned the appeal.

The appellant sought her judicial review costs from the Tribunal. HHJ Worster, sitting in the Administrative Court, made no order for costs because there had been no flagrant improper behaviour of the kind required by R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207.

The sole issue on appeal was whether the more claimant-favourable approach to costs in R (M) v Croydon London Borough Council [2012] EWCA Civ 595 had modified the special rule governing costs against an inferior tribunal.

1. The appeal was dismissed. R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207 remained binding. An inferior tribunal which does not appear in judicial review proceedings is ordinarily not ordered to pay costs. The recognised exceptions are flagrant improper behaviour and an unreasonable refusal or neglect to sign a consent order disposing of the proceedings. Neither exception was available on this appeal.

2. Where a tribunal actively resists a claim as a partisan litigant, ordinary event-based costs principles apply. Where it appears only to assist the court neutrally on jurisdiction, procedure or specialist law, it ordinarily neither receives nor pays costs, irrespective of the result.

3. R (M) v Croydon London Borough Council [2012] EWCA Civ 595 did not supersede Davies. It concerned costs against an identifiable public authority which was a party to the litigation, rather than liability of the tribunal whose decision was challenged. Its development of the law principally concerned settlements and the assessment of costs where a claimant obtained only some of the relief sought. It did not address the special position of inferior tribunals.

4. The fact that the appellant obtained the substantive relief sought did not make the Tribunal liable. The Secretary of State had taken no part in the judicial review and was not amenable to a costs order. It did not follow that liability transferred to the Tribunal.

5. Routine liability of a tribunal for the costs of setting aside its decision would be a serious and novel step. It could extend to undefended appeals as well as judicial reviews and would substantially qualify judicial immunity. Any departure from Davies had to be made by a court with authority to do so, not a court of co-ordinate jurisdiction.

6. The legislation did not indicate that the First-tier Tribunal possessed a separate legal personality or that its members enjoyed a statutory costs indemnity. Section 3(3) of the Tribunals, Courts and Enforcement Act 2007 merely provided that the Tribunal consisted of its judges and other members.

Longmore LJ gave the judgment. David Richards and Moylan LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The tribunal-specific costs principles in R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207 remained binding.
2. Administrative Court: HHJ Worster made no order for costs. The First-tier Tribunal had not participated in the judicial review and its conduct did not amount to flagrant improper behaviour.
3. Administrative Court, interim proceedings: Jay J ordered that the deportation appeal should not proceed until determination of the challenge to the refusal of exceptional case funding. The Tribunal subsequently adjourned the appeal.