Mostafa Shahi v Secretary of State for the Home Department

This appeal concerned whether a claimant who obtained interim relief in a judicial review challenge to the cessation of asylum support should be treated as the successful party for costs purposes. The Court of Appeal held that the grant of interim relief, obtained on the balance of convenience and without an admission or a decision on the underlying legality of the Secretary of State’s conduct, did not automatically make the claimant the successful party. The court emphasised the distinction between interim protection (maintaining the status quo to avoid irreparable harm) and a final determination on the merits, and applied the guidance in M v Croydon and R (Naureen) v Salford City Council when assessing whether there was a clear successful party. Because the consent order did not resolve or concede the central legal issue (whether the cessation of support was unlawful), the judge was entitled to find that it was not possible to say who would have prevailed at a substantive hearing and to make no order for costs.

Background and facts.

• MS was a refugee whose asylum claim was recognised on 3 January 2020. He was informed that asylum support would cease 28 days after grant (in accordance with the Asylum Support Regulations), and his accommodation was to end on 19 February 2020.
• MS faced a short gap between the cessation of asylum support and the likely receipt of Universal Credit and local authority accommodation. His solicitors wrote a pre-action letter alleging unlawfulness, including breach of Articles 3 and 8 ECHR and a failure to provide a sufficient move-on period, and sought continuation of support until UC or local authority housing was in place.

Procedural posture. MS issued judicial review proceedings and obtained without-notice interim relief from Johnson J requiring the Secretary of State to continue support pending determination of the permission application or further order. The claim was later withdrawn by consent and the interim order discharged. MS sought his costs; the High Court (HHJ Worster) made no order for costs. MS obtained permission to appeal to the Court of Appeal.

Nature of the claim and issues before the Court of Appeal. (i) Whether the application for judicial review and interim relief challenged the lawfulness of the Secretary of State’s decision to cease support; (ii) whether Johnson J’s interim order decided that dispute on the merits; (iii) what the consent order settled; and (iv) whether MS was the successful party for the purposes of CPR Part 44.3(2), i.e. whether the court should treat the interim relief and subsequent practical outcome as success for costs.

Reasoning and decision. The Court analysed the statutory scheme (Part VI of the Immigration and Asylum Act 1999 and the implementing regulations), the pleadings and the pre-action correspondence and concluded that the essential dispute concerned the alleged unlawfulness of the cessation of support. Johnson J granted interim relief on the basis that the claimant’s case was arguable and the balance of convenience favoured maintaining the status quo; he expressly did not decide the substantive legal issue. The consent order withdrew the claim and discharged the interim order without any concession or a substantive determination that the Secretary of State had acted unlawfully. Applying the principles in M v Croydon and R (Naureen) v Salford City Council, the Court held that where the underlying dispute on the merits remains undecided and no concession has been made, a claimant’s obtaining of interim relief does not automatically make him the successful party for costs. Where it is not possible to say who would have won at a substantive hearing, it is appropriate to make no order for costs. The Court therefore dismissed the appeal against the High Court’s order for no costs.

Appeal dismissed. The Court held that interim relief granted on arguability and the balance of convenience does not, by itself, amount to success for costs purposes where the underlying legal issue was not decided or conceded; because the consent order did not resolve or concede the central legal question, the High Court was entitled to conclude it could not tell who would have prevailed and to make no order for costs.

Appeal from the High Court (Administrative Court) (HHJ Worster, CO/639/2020). Permission to appeal was given by Simler LJ. The Court of Appeal (Newey LJ, Dingemans LJ, and Elisabeth Laing LJ) heard the appeal and delivered judgment [2021] EWCA Civ 1676 (16 November 2021).