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

On an appeal concerning costs, the court may interfere only for an error of principle, an improper approach, failure to consider a material factor, or a decision that is wholly wrong because the factors were not fairly balanced. In a consented judicial review, the court should adopt a proportionate approach to resolving costs. The default may be no order where determining the issue would consume disproportionate judicial time. Costs should be assessed by reference to the claimant’s actual success and the effect of any factual error on the litigation. A factual error warrants a deduction only where it materially affected the litigation or caused significant additional costs. Different periods of litigation may properly receive different costs orders.

The claimant, a failed asylum seeker, challenged delays in providing accommodation and support under Immigration and Asylum Act 1999, following the allowance of his appeal by the First-tier Tribunal. The substantive claim ended in a consent order dated 2 June 2017, which recorded unlawful delay and provided for damages and certain procedural changes, while leaving costs to be determined by written submissions.

Master Gidden ordered that there be no order as to costs. The claimant appealed, arguing that the master had given excessive weight to an earlier inaccurate account of whether emergency accommodation had been offered and had undervalued the claimant’s success on wider accommodation issues. The central questions were whether the error materially affected the litigation and how costs should be allocated before and after the defendant’s offer of 9 February 2017.

1. The appeal was allowed in part. The defendant was ordered to pay the claimant’s costs up to and including 15 February 2017, subject to detailed assessment if not agreed. There was no order as to costs thereafter.

2. The court applied the approach summarised in R(Tesfay) and Others v SSHD [2016] EWCA Civ 415. An appellate court may intervene only where the costs judge erred in principle or approach, omitted or considered an inappropriate factor, or reached a wholly wrong result by failing fairly to balance the relevant considerations.

3. The court accepted that, on the face of the consent order, the claimant was entitled to costs up to the defendant’s offer of 9 February 2017. The inaccurate account concerning emergency accommodation did not materially affect the commencement of proceedings, the grant of interim relief, the unlawful-delay declaration, the damages, or the wider arrangements concerning dispersal accommodation. It caused only modest additional costs and did not justify a deduction or a sanction through the costs order.

4. The court treated proportionality as important when resolving costs in a consent order, following the approach described in R(M) v Croydon LBC [2012] 1 WLR 2607. Where a fair determination cannot be made without disproportionate expenditure of judicial time, no order for costs may be the appropriate default.

5. After 15 February 2017, the claimant achieved only very limited further progress. No substantial declaratory relief was granted on the amended claims, and the remaining agreed procedural change was of negligible importance to the claimant personally. The fair result for that period was therefore no order as to costs.

• High Court (Administrative Court): Master Gidden ordered that there be no order as to costs. On appeal, the High Court varied that outcome by ordering payment of the claimant’s costs up to and including 15 February 2017, with no order as to costs thereafter.