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

The claimant, a failed asylum seeker, challenged delay in the provision of accommodation under s4 of the Immigration and Asylum Act 1999 and sought various declarations including breaches of Article 3 ECHR and s149 Equality Act 2010. The substantive litigation had been resolved by a Consent Order dated 2 June 2017 and the only remaining issue on this appeal was the costs order made by Master Gidden on 28 September 2017 (no order as to costs).

The court held that Master Gidden erred in principle by treating the claimant’s earlier factual error about whether he had been told of the availability of emergency accommodation as materially determinative of entitlement to costs up to the defendant’s 9 February 2017 offer. The factual error did not materially alter the course of the litigation or the offer made, and any extra costs caused were modest. The judge allowed the appeal in part and ordered the defendant to pay the claimant’s costs up to and including 15 February 2017, with no order as to costs thereafter.

This was an appeal against a costs decision made after the substantive judicial review had been resolved by a Consent Order dated 2 June 2017. The claimant, represented by Deighton Pierce Glynn, had applied for judicial review of the Secretary of State’s delay in providing s4 accommodation following a successful First-tier Tribunal appeal on 7 September 2016. The claim alleged unlawful delay, breach of policy on offering emergency accommodation, discrimination under s149 Equality Act 2010 and systemic failings giving rise to ECHR Article 3 risks. Interim relief was granted and the defendant later offered to settle by a draft consent order on 9 February 2017 admitting unlawful delay and offering to pay costs to that date.

• Nature of the application: judicial review challenging delay in s4 accommodation, declarations (including Article 3 and s149 EA 2010 breaches), damages and costs; interim relief sought and obtained.
• Procedural posture: substantive case ended by Consent Order of 2 June 2017 (including a payment of £3,000 damages and an attached letter of proposed procedural changes); Master Gidden had ordered no costs; claimant obtained permission to appeal that costs order.
• Issues framed by the court on appeal: (i) whether the claimant was entitled to costs up to the defendant’s 9 February 2017 offer and, if so, whether any deduction was justified because the claim form contained an erroneous factual statement about emergency accommodation; (ii) whether the claimant obtained any further significant success after rejecting the 9 February offer such that costs should follow the event after that date.

The court analysed the factual development of the case, the amendments to the grounds, and the 9 February 2017 offer. It concluded that the factual error about emergency accommodation did not change the need for proceedings, the grant of interim relief, the substance of the 9 February offer or the consent order ultimately made. Any additional costs caused by the error were modest and largely of the sort that would have been incurred had the correct factual position been established earlier. The judge therefore considered it disproportionate and unfair to deny all costs up to the February offer. For costs after 15 February 2017 the claimant achieved very limited additional benefit; the Part B assurance in the attached letter was of negligible importance to the claimant personally and did not justify an order for further costs. The appeal was therefore allowed in part: defendant to pay claimant’s costs up to and including 15 February 2017, to be assessed if not agreed; no order as to costs thereafter.

The appeal was allowed in part. The court concluded Master Gidden had erred in the weight he gave to a factual error in the claim about emergency accommodation; that error did not materially alter the course of the litigation and caused only modest additional costs. The defendant was ordered to pay the claimant’s costs up to and including 15 February 2017 (to be subject to detailed assessment if not agreed) and there was no order as to costs thereafter.

Substantive litigation resolved by Consent Order dated 2 June 2017. Master Gidden made a costs decision on 28 September 2017 ordering no order as to costs. The claimant was granted leave to appeal that costs decision to the Administrative Court (this judgment) [2018] EWHC 1164 (Admin). Relevant authorities considered on appeal included R (Tesfay) and Others v SSHD [2016] EWCA Civ 415 and R (M) v Croydon LBC [2012] 1 WLR 2607 as to principles governing costs in consent/order disputes and proportionality.