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

In a partly successful judicial review, costs must reflect the reality that more than one party may have succeeded. The court should consider the importance and extent of each issue, the reasonableness of pursuing unsuccessful claims, and the extent to which those claims increased costs. A trial judge has a broad costs discretion, but must exercise it rationally and according to the governing principles in the Civil Procedure Rules 1998. An appellate court may intervene where the judge’s approach departs materially from those principles or fails to reflect the findings made. Where the claimant succeeds on a serious but limited issue and the defendant succeeds on the substantial remainder, an order that each side bear its own costs may be appropriate.

The Secretary of State appealed a costs order made after WS’s judicial review claim concerning immigration detention and certification of an asylum claim. The Administrative Court accepted that detention during the final four weeks had been unlawful, following a concession made at the hearing, but dismissed the challenges to the earlier detention and certification.

The deputy High Court judge ordered the Secretary of State to pay 75 per cent of WS’s costs. The Secretary of State argued that the judge had failed to reflect her success on the principal issues and the costs generated by unsuccessful and unreasonable claims. The central issue was whether the costs discretion had been exercised according to the correct principles.

1. Appeal allowed. The costs order could not stand. Although WS obtained a remedy for unlawful detention, he succeeded on only one aspect of a much larger claim. The Secretary of State succeeded in relation to the previous 20 months of detention and on the certification issue.
2. Under rule 44.2(2) of the Civil Procedure Rules 1998, the general rule that the unsuccessful party pays the successful party’s costs may be displaced. The court must consider, among other matters, whether it was reasonable to raise, pursue or contest particular allegations or issues. The costs exercise must reflect the contours of the case established by the judge’s findings.
3. The judge recognised that there were significant issues on which the Secretary of State had succeeded, but his conclusion that this justified only a limited deduction from WS’s costs did not rationally reflect the case. The duration of the proceedings largely coincided with claims that were unsuccessful, and some were unreasonable. The three unsuccessful bail applications and additional certification submissions were also relevant considerations.
4. The discretion to award costs remains primarily that of the trial judge, and an appellate court is slow to interfere. However, as explained by Lord Neuberger MR in R (M) v Croydon London Borough Council [2012] 1 WLR 2607, intervention is legitimate where the judge departs from rationality or the correct principles.
5. The Secretary of State’s claim for 80 per cent of her costs was too ambitious. Balancing the serious finding of unlawful detention against the overblown nature and limited success of WS’s claim, the appropriate order was that each side bear its own costs below.

• Court of Appeal (Civil Division): The appeal was allowed. The 75 per cent costs order was replaced with an order that each side pay its own costs of the proceedings below.
• Administrative Court: WS succeeded only on the conceded unlawfulness of detention during the final four weeks; the remaining challenges were dismissed. The deputy High Court judge ordered the Secretary of State to pay 75 per cent of WS’s costs.