D & Ors v The Lord Chancellor & Anor

The claimants sought judicial review of a protocol issued on 26 February 2019 by the President of the First-tier Tribunal (Immigration and Asylum Chamber) directing that all appeals in which Duncan Lewis solicitors acted should be transferred out of the Birmingham hearing centre to Hatton Cross. The central legal issues were whether the protocol amounted to an unlawful blanket policy raising an appearance of bias, whether the claimants had standing, and the appropriate costs consequences where a court or tribunal defendant ceases to act neutrally in judicial review proceedings.

The court held that the protocol was effectively withdrawn on 17 May 2019 and replaced with new administrative listing directions consistent with case law on bias and recusal. The claimants had standing and had obtained the principal relief sought. The defendant had not maintained a neutral posture in the proceedings but had actively contested them, such that this was a category 2 Davies case and the usual principle that an unsuccessful party pays costs applied. The defendant was ordered to pay the second and third claimants' costs; costs for the first claimant were governed by CPR Part 36 after that claimant accepted a Part 36 offer.

Background and parties: Two Duncan Lewis directors were appointed as fee-paid judges at the Birmingham hearing centre. The President of the First-tier Tribunal (Immigration and Asylum Chamber) issued a policy (26 February 2019) directing that appeals in which Duncan Lewis acted should be transferred from Birmingham to Hatton Cross. Three claimants (D, P and K) challenged the protocol by judicial review. The Lord Chancellor was the defendant and the Secretary of State for the Home Department was an interested party. The claimants were represented by Duncan Lewis.

Nature of the claim and relief sought: The claimants sought withdrawal/quashing of the protocol and relief to prevent their appeals being heard at Hatton Cross. The second and third claimants also sought permission to discontinue their claims on terms that the defendant pay costs, asserting the protocol had been effectively revoked and they had obtained the relief sought.

Procedural posture: These were first-instance judicial review claims in the Administrative Court. The first claimant accepted a CPR Part 36 offer and his costs were governed by CPR rule 36(13)(1). The second and third claimants applied to discontinue their claims and sought costs against the defendant under CPR rule 38.2(2)(a)(i).

Issues for decision:

• Whether the protocol amounted to an unlawful blanket policy giving rise to appearance of bias or otherwise unlawful listing practices;
• Whether the claimants had standing and whether their judicial review claims were premature for not exhausting tribunal remedies;
• Whether the defendant had acted neutrally as a court/tribunal defendant in judicial review proceedings, or whether it had actively resisted the claims such that costs should follow the event (application of the Davies categories);
• Appropriate costs orders in light of CPR and authorities on when courts or tribunals should be ordered to pay claimants' costs.

Reasoning and outcome: The judge found the core complaint targeted the protocol itself and that the claimants had standing. The protocol was withdrawn on 17 May 2019 and replaced with listing arrangements to identify and avoid possible conflicts where fee-paid judges are employed by firms, which addressed the principal relief sought. The court rejected the defendant's submission that the claimants should be penalised for not exhausting tribunal remedies and concluded that the defendant had not acted neutrally: correspondence and pleadings showed active resistance and threat of costs, and the defendant participated beyond the neutral role appropriate for a tribunal defendant. Applying the Davies analysis, the judge classified the case as a category 2 Davies case and ordered the defendant to pay the second and third claimants' costs. The first claimant's costs consequences were dealt with under CPR Part 36.

Wider comment: The judgment discusses the established approach to costs where courts or tribunals appear as defendants in judicial review proceedings (Davies categories), and balances that approach against considerations in cases such as JFS and decisions concerning legal aid, but the decisive factor here was the defendant's active resistance and the withdrawal of the protocol in response to the claims.

The court ordered that the defendant must pay the second and third claimants' costs of their judicial review claims. The first claimant's claim was settled by acceptance of a CPR Part 36 offer, with costs governed by CPR rule 36(13)(1). The rationale was that (i) the claimants had standing and obtained the principal relief when the President's protocol was withdrawn and replaced by targeted listing arrangements on 17 May 2019; and (ii) the defendant ceased to act neutrally and actively contested the claims, rendering this a category 2 Davies case where costs should follow the event.