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 In this very helpful decision the CA make it clear that Claimant's
should be entitled to their costs when the SSHD concedes the case even
if it is for 'pragmatic reasons', provided that the Claimant's
solicitors have complied with the Pre-Action Protocol. This serves to
re-emphasise the importance of a proper and full letter before claim in
order to claim interpartes costs. See the conclusion of Pill LJ when he
states from paragraph 59:
"What is not acceptable is a state of mind in which the
issues are not addressed by a defendant once an adequately formulated
letter of claim is received by the defendant. In the absence of an
adequate response, a claimant is entitled to proceed to institute
proceedings. If the claimant then obtains the relief sought, or
substantially similar relief, the claimant can expect to be awarded
costs against the defendant. Inherent in that approach, is the need for a
defendant to follow the Practice Direction (Pre-Action Conduct) or any
relevant Pre-Action Protocol, an aspect of the conduct of the parties
specifically identified in CPR r.44.3(5). The procedure is not
inflexible; an extension of time may be sought, if supported by
reasons...
63. I have serious misgivings about UKBA's claim
to avoid costs when a claim is settled for "purely pragmatic reasons".
My reservations are increased by the claim, on the facts of the present
cases, that the right to work was granted for pragmatic reasons. I am
unimpressed by suggestions made in the present cases that permission to
work was granted for reasons other than that the law required permission
to work to be granted. There may be cases in which relief may be
granted for reasons entirely unconnected with the claim made. Given the
Secretary of State's duty to act fairly as between applicants, and the
duty to apply rules and discretions fairly, a clearly expressed reason
would be required in such cases. The expression "purely pragmatic"
covers a multitude of possibilities. A clear explanation is required,
and can expect to be analysed, so that the expression is not used as a
device for avoiding an order for costs that ought to be made.
64.
In addition to those general statements, what needs to be underlined is
the starting point in the CPR that a successful claimant is entitled to
his costs and the now recognised importance of complying with
Pre-Action Protocols. These are intended to prevent litigation and
facilitate and encourage parties to settle proceedings, including
judicial review proceedings, if at all possible. That should be the
stage at which the concessions contemplated in Boxallprinciple (vi) are
normally made. It would be a distortion of the procedure for awarding
costs if a defendant who has not complied with a Pre-Action Protocol can
invoke Boxall principle (vi) in his favour when making a concession
which should have been made at an earlier stage. If concessions are due,
public authorities should not require the incentive contemplated by
principle (vi) to make them.
65. When relief is granted, the
defendant bears the burden of justifying a departure from the general
rule that the unsuccessful party will be ordered to pay the costs of the
successful party and that the burden is likely to be a heavy one if the
claimant has, and the defendant has not, complied with the Pre-Action
Protocol. I regard that approach as consistent with the recommendation
in paragraph 4.13 of the Jackson Report.
Fresh claims
In an ex tempore judgment on 5 August
2011 HHJ Waksman QC allowed the Claimant's application for judicial
review in Heidari v SSHD. Although the Claimant has been disbelieved by
an Immigration Judge she relied upon additional fresh evidence to
support her claim that she had been subjected to domestic violence by
her husband and had been accused of adultery by him, thereby placing her
at risk in Iran. HHJ Waksman QC considered that the Defendant's
consideration of the fresh evidence was irrational and insufficient
attention was paid to the corroborative evidence provided by experts and
the Claimant's children. Significantly it was recognised that the fact
that a Claimant had been disbelieved in the past was not sufficient
reason to ignore fresh expert evidence which tended to support the
Claimant's credibility. This is a point often taken by the Defendant
when refusing fresh claims and this decision serves as a timely reminder
that to do so is unlawful.
When a transcript of this judgment becomes available it will be circulated.
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