Fayad, R (On the Application Of) v The Secretary of State for the Home Department

An agreement that costs be decided on the papers by a Master excludes an oral reconsideration before the Master, but does not exclude the distinct right to seek review by a single judge under the Civil Procedure Rules 1998. An extension of the seven-day time limit is governed by the three-stage Denton approach. A 46-day delay was serious and significant; the absence of an evidenced explanation, prejudice and the importance of finality justified refusal. A costs decision can be disturbed only if outside the wide ambit of discretion. A settlement following fresh evidence and granting only part of the relief sought does not establish that the lower court’s dismissal was legally wrong. In additional observations, Singh LJ stated that judicial review provisions allowing damages govern procedure only: they create no cause of action, and Human Rights Act 1998 damages claims must be based on substantive law and properly pleaded.

The appellant challenged the refusal to issue him with a further British passport and sought judicial review, damages and other relief. The Administrative Court dismissed the claim in [2014] EWHC 2556 (Admin) and made no order as to costs.

After fresh evidence confirmed the authenticity of documents relied upon by the appellant, the appeal was compromised by consent. The Secretary of State agreed to issue passports and pay the costs of the appeal, while costs below were left to be determined on the papers by a Master. The Master maintained the no-order costs decision and ordered the appellant to pay the Secretary of State’s costs of the costs submissions.

The appellant sought an out-of-time review, an extension of time and a finding that the Master’s decision was irrational. The issues were whether time should be extended, whether the consent order excluded review, and whether the costs decision fell outside the Master’s discretion.

1. Disposition. The applications for an extension of time, review of the Master’s decision and relief on the merits were all refused.
2. Extension of time. The seven-day period under rule 52.24(7) was subject, by analogy with Hysaj, to the three-stage approach in Denton: assess the seriousness and significance of the breach, identify the reason for it, and evaluate all the circumstances. The 46-day delay was serious and probably significant. The appellant provided no evidenced explanation for it. The Secretary of State had acted on the basis that the costs order was final, and finality of judicial decisions was important. The extension was therefore refused. Reliance on the pre-Denton approach in Sayers was not appropriate.
3. Jurisdiction. The consent order was objectively construed. Following RS (Sri Lanka), an agreement for costs to be determined on the papers excluded an oral reconsideration before the Master. It did not exclude the separate right under rule 52.24(5) to seek review of a court officer’s decision by a single judge. Rule 52.24(6) did not alter that conclusion. Section 58(2) of the Senior Courts Act 1981 meant that no further appeal lay from the decision of a court officer or single judge.
4. Costs merits. A challenge to the Master’s costs decision required the appellant to show that it fell outside the wide ambit of the costs discretion. The public law costs principles in M v Croydon London Borough Council required attention to the extent of success and the relationship between the settlement and the claims. The appellant obtained a passport but not damages, including the potentially substantial loss-of-earnings claim. The settlement resulted from fresh evidence which overtook the challenged decision; it did not concede that the lower court’s dismissal was legally wrong. The no-order costs decision was therefore within the discretion and was not irrational.
5. Additional observations. Singh LJ agreed with the judgment and added that section 31(4) of the Senior Courts Act 1981 and rule 54.3(2) of the Civil Procedure Rules 1998 regulate the procedure for including damages in judicial review proceedings. They do not create a substantive cause of action. A damages claim must rest on an independent source of substantive law and be properly pleaded. Under sections 6 and 8 of the Human Rights Act 1998, any damages claim must address the requirement of just satisfaction and the principles applied under Article 41 of the Convention. These observations were additional to the basis of disposition.
6. Unsolicited post-hearing written submissions were inappropriate where the party had been represented and had the proper opportunity to make submissions at the hearing.

• Court of Appeal (Civil Division): The court refused the out-of-time application for review of the Master’s costs decision, refused an extension of time and rejected the challenge to the decision.
• Court of Appeal (Civil Division): The earlier appeal was granted permission, fresh evidence was admitted and the proceedings were later withdrawn by consent. The Secretary of State agreed to issue passports, remove the appellant from the Stop File List and pay the appeal costs. Costs below were referred to a Master.
• High Court, Queen’s Bench Division, Administrative Court: Judge McKenna dismissed the judicial review claim in [2014] EWHC 2556 (Admin) and made no order as to costs.