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

In settled public-law proceedings, costs remain discretionary under the CPR. A claimant who obtains the release sought may be treated as wholly successful, but costs may still be refused where there is good reason. Such a reason may exist where the claimant pursues a second judicial review for interim release alongside an already listed bail application, and the second claim is essentially duplicative, disproportionate and offers little practical advantage. Bail does not determine whether detention is lawful, although an allegation of unlawful detention may be relevant to the bail assessment. An appellate court should also refuse a new argument requiring evidence not placed before the first-instance judge.

The appellant had been held in immigration detention while pursuing related judicial review and private-law proceedings. In a first judicial review, he sought relief concerning his removal and later applied for High Court bail. He then issued a second judicial review seeking a declaration that his detention since 2 January 2013 was unlawful and interim relief requiring his release.

The appellant was released on agreed bail terms, and the second claim was withdrawn by consent. The Deputy High Court Judge made no order as to costs, finding that the second claim duplicated the bail application and that success on the unlawful-detention issue was not tolerably clear. The appellant appealed, arguing that obtaining release made him wholly successful and that the second claim was reasonably necessary.

1. Appeal dismissed. The Deputy Judge had not erred in principle or approach in making no order as to the costs of the second claim.
2. Under CPR rules 1.1 and 44.2, the court has a broad discretion, subject to the overriding objective and all the circumstances, including the parties’ conduct. The general rule that the unsuccessful party pays the successful party applies equally in public-law proceedings. Applying R (M) v Croydon Borough Council [2012] EWCA Civ 595; [2012] 1 WLR 2607, a wholly successful claimant will ordinarily recover costs unless there is good reason to depart from that position.
3. For the purposes of the appeal, the court accepted that the appellant’s only practical objective in the second claim was prompt release. Even on that assumption, there was good reason to refuse costs. The bail application in the first claim had already been listed for hearing within two weeks. The second claim was issued solely to obtain substantially the same relief. The applications were not identical and might theoretically have produced different results, but the practical advantage of the second claim was vanishingly small and the additional costs were grossly disproportionate.
4. Bail is not a determination of the lawfulness of detention. An allegation that detention is unlawful may nevertheless form part of the balancing exercise on bail, and could sometimes receive greater weight where lawfulness is directly in issue. On the facts, there was no sensible reason to give it greater weight in the separate interim-relief claim. The declaratory claim was also strongly contested, and it was not tolerably clear that the appellant would have succeeded on it.
5. The jurisdiction argument based on possible refusal of bail was raised for the first time on appeal. Reliance on In Re Corey [2013] UKSC 76; [2013] 2 WLR 1612 did not require the court to determine that issue. The point was too late, required evidence about the appellant’s and his advisers’ state of mind, and in any event could not succeed on the material before the court. The applicable restraint on appellate interference with costs decisions, stated in R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415, was not overcome.

• Court of Appeal (Civil Division): Permission to appeal was granted on renewal by Longmore LJ. The appeal against the costs order was dismissed.
• High Court (Queen’s Bench Division): Clare Moulder sitting as a Deputy High Court Judge made no order as to costs in the withdrawn second judicial review, holding that the proceedings unnecessarily duplicated the bail application and that success on the unlawful-detention issue was uncertain.