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

Where judicial review proceedings settle, the parties should take all reasonable steps to agree both liability for costs and their amount. They should not leave costs to the Tribunal merely because that is convenient. A party who reasonably pursues a claim for which permission was granted is ordinarily entitled to costs following the substantive outcome. However, settlement negotiations and the basis on which the agreed remedy is obtained may be material. An unreasonable failure to agree costs may itself attract a costs penalty.

The applicant brought judicial review proceedings challenging an immigration decision of 3 March 2016. Permission was granted on grounds founded on evidence available before that decision, although the permission judge encouraged a reasonable resolution in light of later evidence.

The parties subsequently agreed by consent order that the respondent would make a fresh decision on fresh submissions. They did not agree costs. The Tribunal had to determine whether, and to what extent, the respondent should pay the applicant’s costs following that settlement.

1. The respondent was ordered to pay the applicant’s reasonable costs to date, to be assessed if not agreed.

2. Permission had been granted on the pleaded grounds and on pre-decision evidence. The applicant had therefore been entitled to bring the claim. Had it proceeded on those grounds, costs would have followed the outcome.

3. The later evidence did not found the grant of permission. It was nevertheless relevant to the parties’ subsequent sensible resolution of the proceedings. The consent order secured a fresh decision on fresh submissions, rather than reconsideration of the challenged decision on the material originally before the decision-maker.

4. Applying the guidance in M v London Borough of Croydon [2012] EWCA Civ 595, the Tribunal encouraged settlement of substantive issues but stressed that parties must also seek to resolve costs. The respondent’s earlier offer would probably have been accepted had it included costs up to and including permission; otherwise, it would have exposed the applicant to liability for the respondent’s subsequent costs.

5. The parties were warned that an unreasonable failure to reach agreement on costs was likely to be penalised in costs.

These were judicial review proceedings. Permission was granted by Judge Plimmer on 23 August 2016. The substantive challenge was resolved by a consent order sealed on 24 November 2016, providing for a fresh decision on fresh submissions. This order determined the outstanding question of costs.