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

An inferior court or tribunal which takes no active part in judicial review proceedings is ordinarily immune from a costs order unless it acted improperly or unreasonably. That rule applies equally to a Cart judicial review.

The court may nevertheless make a principled costs order against the interested party whose underlying decision remains in dispute. A sufficient causal connection may exist even where that party did not participate in the judicial review. The court may therefore direct that the judicial review costs be costs in the resumed tribunal appeal, making liability contingent on the claimant’s ultimate success and subject to the tribunal’s costs jurisdiction.

The appellant’s asylum claim and subsequent appeal were refused. After both the First-tier Tribunal and Upper Tribunal refused permission to appeal, he brought a Cart judicial review under rule 54.7A of the Civil Procedure Rules 1998. Neither the Upper Tribunal nor the Secretary of State contested the claim.

The Administrative Court quashed the Upper Tribunal’s refusal and directed that the judicial review costs be treated as costs of the appeal before the Upper Tribunal. The appellant challenged the refusal of an immediate costs order against the Upper Tribunal or the Secretary of State. The Secretary of State cross-appealed against his contingent liability. The central issues concerned tribunal immunity, the liability of an inactive interested party and the lawfulness of linking judicial review costs to the resumed tribunal appeal.

1. Appeal and cross-appeal dismissed. The Administrative Court’s costs order was principled, just and within its wide discretion.

2. An inferior court or tribunal which is the formal defendant to judicial review proceedings is ordinarily not liable for costs if it takes no active part. An order may be made where the tribunal has acted improperly or unreasonably, or has adopted an active, non-neutral stance. That principle, established by R (Davies) v Birmingham Deputy Coroner [2004] EWCA Civ 207 and reinforced by R (Gudanaviciene) v First-tier Tribunal [2017] EWCA Civ 352, rests upon judicial immunity.

   Cart claims are not materially different for this purpose. Rule 54.7A of the Civil Procedure Rules 1998 establishes a distinct and restricted procedure, but neither that rule nor R (Cart) v Upper Tribunal [2011] UKSC 28 creates a different costs regime. The constitutional right of access to justice did not justify a further exception to judicial immunity. The appellant’s public funding also supplied no basis for departing from the ordinary principles.

3. Costs orders must have a principled basis. The usual rationale is that one party’s conduct compelled the successful party to litigate to vindicate legal rights. In a Cart claim arising from an immigration appeal, the proceedings need not be viewed in isolation from the underlying dispute. The claimant’s ultimate asserted right was the right to asylum, and the Secretary of State remained the opposing protagonist in relation to that right.

4. The Secretary of State’s non-participation in the judicial review did not preclude a costs order against him as interested party. His continued opposition to the underlying asserted right supplied a sufficient operative causal connection with the judicial review costs. The claimant was the successful party, and the general rule in rule 44.2(2) of the Civil Procedure Rules 1998 was not rigid.

5. The judge could direct that the judicial review costs be treated as costs of the resumed Upper Tribunal appeal. The order made liability contingent on success in that appeal and remained subject to rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008. It was comparable to an appellate order making appeal costs costs in a rehearing and was fair to both parties.

1. Court of Appeal (Civil Division): Dismissed both the appellant’s appeal and the Secretary of State’s cross-appeal. It upheld the contingent costs order: [2019] EWCA Civ 151.
2. Administrative Court: His Honour Judge David Cooke, sitting as a High Court judge, quashed the Upper Tribunal’s refusal of permission, remitted the permission application and directed that the judicial review costs be treated as costs of the Upper Tribunal appeal.
3. Upper Tribunal: Following remittal, granted permission, found an error of law, allowed the appeal and remitted the asylum appeal to the First-tier Tribunal.
4. First-tier Tribunal: On rehearing, refused the asylum appeal. Further permission to appeal was refused.