ZN (Afghanistan) & Anor v Secretary of State for the Home Department

Where judicial review proceedings end by consent, a claimant does not become successful for costs purposes merely because the practical outcome is favourable. Ordinarily, there must be a causal connection between the merits of the claim, or the opposing party’s conduct in the litigation, and the relief obtained.

Administrative failures extrinsic to the litigation do not ordinarily justify treating the claimant as successful. Public funding cannot itself create an entitlement to costs. Once a principled basis for an award exists, however, the court may take account of the realities of legal aid and the public interest in effective access to justice when exercising its discretion under rule 44.2 of the Civil Procedure Rules 1998.

Two asylum seekers challenged decisions to remove them to Bulgaria and Austria under the Dublin III system. Each appeal was later withdrawn by consent after administrative failures caused the applicable transfer period to expire and the Secretary of State agreed to determine the asylum claim in the United Kingdom.

The underlying challenges had not been determined on their merits. The consent orders left costs for determination by the Court of Appeal. The principal issue was whether the appellants should be regarded as successful because they had obtained the practical outcome sought, even though that outcome resulted from administrative failures rather than the merits of their claims. The court also considered the extent to which public funding and access to justice may influence the discretion as to costs.

1. The applications for costs were refused unanimously. The appellants could not be regarded as successful for costs purposes. Had their appeals been determined on their merits, they would have been dismissed. The withdrawal of the removal decisions resulted from the expiry of the Dublin III transfer periods following administrative failures, rather than from vindication of the pleaded challenges.

2. The normal rule that costs follow the event reflects a causal relationship between the expense of litigation and the need to vindicate legal rights which the opposing party should have respected. A favourable practical outcome does not suffice where the proceedings became academic for a reason extrinsic to their merits. By analogy with the Malta claimants in R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415, the appellants had not achieved legal success.

3. For the purposes of rule 44.2(4)(a) of the Civil Procedure Rules 1998, the relevant conduct is normally conduct in the litigation itself. The Secretary of State’s administrative failures occurred outside the litigation. There was no criticism of her conduct of the proceedings and those failures supplied no principled basis for awarding costs.

4. Singh LJ, with whose approach Sir Brian Leveson P agreed, held that public funding cannot by itself justify an award. Where a principled entitlement to costs otherwise exists, however, the court may take account of the realities of legal aid practice and the public interest in maintaining effective access to justice. Section 30(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 does not make the existence of legal aid necessarily irrelevant.

5. Leggatt LJ agreed with the disposition but considered that the fact that the particular party is publicly funded should ordinarily be ignored. In his view, access-to-justice considerations should instead inform generally applicable principles: courts should analyse whether substantive success was achieved, should not set the threshold for success too high, and should not too readily reduce the costs of a claimant who reasonably obtained material relief. That approach did not assist these appellants because their claims had not succeeded.

1. Court of Appeal (Civil Division): Following withdrawal of both appeals by consent, unanimously refused the appellants’ applications for costs: [2018] EWCA Civ 1059.
2. Upper Tribunal (Immigration and Asylum Chamber): Refused ZN permission to seek judicial review, certified the application as totally without merit, and subsequently refused permission to appeal.
3. Administrative Court: Kerr J refused KA permission to bring judicial review proceedings after an oral hearing.