JR-2024-LON-001335
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The decision
JR-2024-LON-001335
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
Osman Shuti
Applicant
and
Secretary of State for the Home Department
Respondent
NOTIFICATION of the Judge’s decision
On the application for an order as to costs and following consideration of the documents lodged by the parties and having heard Mr Wilding of counsel, instructed by the applicant, and Mr Smith of counsel, for the respondent, at a hearing on 25 March 2025
Order by Upper Tribunal Judge Lodato:
I ORDER the respondent to pay 75% of the applicant’s conventional and reasonable costs expended in preparing the application for permission to bring judicial review proceedings up to and excluding the hearing of 29 August 2024.
I REFUSE to order the applicant’s representative to pay wasted costs.
I REFUSE to make a Hamid order against the applicant’s representative.
Reasons
Introduction
(1) In an order sealed on 30 September 2024, following an oral renewal hearing listed on 24 September 2024, Upper Tribunal Judge Canavan made directions to the applicant’s representatives to show cause why wasted costs and Hamid orders should not be made. This was in the wake of the hearing being adjourned once it became clear that the required fee to lodge an agreed application notice to amend the grounds of challenge had not been paid on time. The matter came before me on 25 March 2025 to decide whether cause had been shown and to determine the ordinary costs which should move between the parties following the resolution of the underlying claim by consent. At the conclusion of the hearing, I explained that I had concluded that cause had been shown not to make wasted costs and Hamid orders, but that I would reflect on the ordinary costs order and set out all decisions in a reserved decision. These are my reasons for the decisions going to wasted costs, the Hamid question and conventional costs.
Procedural background
(2) The procedural background which led to the claim being compromised and the hearing before me is of importance in establishing where any fault lies in how this matter was prepared. Below is a chronology of the key procedural events:
• 14 May 2024 – Mr Wilding, of counsel, settled detailed grounds challenging the respondent’s decision, dated 13 February 2024, to refuse the applicant’s application for a visit visa. Of the two grounds of challenge, it is only necessary to address the first which was headed “irrational and unlawful reliance on false representations from 2019 decision without showing any intent to deceive”. At [11], it was suggested that the reliance on the 2019 decision was irrational as was the failure to engage with the reasoning in that decision. A similar point was made at [13] and [15] where it was noted that the respondent was wrong not to revisit the previous rationale from 2019. For reasons which will become clear, it is important to note that the grounds did not include any express reference to R (Naidu) v SSHD [2016] EWCA Civ 156.
• 17 July 2024 – the respondent filed their acknowledgement of service and summary grounds of defence. At [10]-[11] of the summary grounds, it was argued that the claim was, in reality, an egregious and abusive (see [11e]) out of time challenge to the lawfulness of the 2019 decision taken on suitability grounds founded on false and dishonest representations.
• 1 August 2024 – the application for permission was refused on the papers by Upper Tribunal Judge Reeds. At [3] of her decision, the judge gave the following reasons:
[…] In reality the applicants do not seek to challenge the present decision but the lawfulness of the 2019 decision. However the applicants have not sought to challenge that finding at the time that it was made. The history shows that no such challenges have been made in the previous applications and to do so now would be out of time. Furthermore when making the 2019 decision, the respondent was entitled to find that the applicant had been given the opportunity to disclose the information in the previous application.
• 8 August 2024 – those representing the applicant lodged an application for reconsideration. The application was accompanied by a brief written argument entitled “renewed application for judicial review” drafted by Mr Wilding. At [2b], introduced by referring to “brief submissions in response to the refusal of Upper Tribunal Judge Reeds”, the following point was made:
The claimant submits that in principle if a claimant can show that a previous decision was made unlawfully then the respondent cannot rely on that unlawful decision to apply mandatory provisions. This is consistent with the decision of the Court of Appeal in Naidu, R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 156.
• 2 September 2024 – the order of Upper Tribunal Judge Smith was sealed following an oral renewal hearing which was adjourned. Matters relating to delay took centre stage at [3]-[4] in the following terms:
Permission was refused by UTJ Reeds on 1 August 2024. In relation to the Applicants’ first ground of challenge, she observed that rather than being a challenge to the Decision, it appeared to be a challenge to an earlier decision in 2019 and therefore there was a point as to delay.
The Respondent has relied on the point in relation to this delay at [10] of her summary grounds. There has been no response to that point from the Applicant. In addition, by a letter dated 27 August 2024 uploaded to CE file, GLD informed the Tribunal that the Respondent wishes to take an additional point on the timeliness of the application. That point is that the application was issued one day beyond the three-month longstop which runs from the date of Decision not the date when it was sent or received. We gave permission for her to do so at the renewed hearing. We observe that, as a matter of practice, that request should generally have been made by paid application with a request to amend the summary grounds. However, on this occasion we do not insist on an application, first because the point is a very limited one and could have been taken at the hearing in any event and second, there is no need to amend the summary grounds to take the point. The onus is on the Applicant to deal with timeliness. For that reason, we have given the Applicant time to apply to amend his grounds to deal with this point and the point made at [10] of the Respondent’s summary grounds as picked up by Judge Reeds in her decision refusing permission.
It was noted that repeated and unpaid applications had been made to adjourn the oral renewal hearing because Mr Wilding was unavailable. In commenting on the lack of merit to those applications, it was observed that “[…] there is no reason why any particular barrister needs to represent in this case. Another barrister would be quite able to do so, relying on the grounds drafted by Mr Wilding with such amendments as the applicant may wish to make in accordance with our above permission to amend”. The application to adjourn was ultimately granted. The failures to make paid applications to adjourn were referred to in the context of Hamid directions at [9]. It was ordered, without opposition from the respondent, that there should be no costs paid for this hearing.
• 16 September 2024 – in amended grounds for judicial review drafted by Ms Physsas, of counsel, all amendments were emphasised by underlining. Additions included submissions going to timeliness ([4]-[7]), an authority relating to the burden of proving dishonesty ([18]) and modest amendments touching on ground two. Between [19] and [35], ground one was expressed in greater detail than in the original grounds, and application for reconsideration, drafted by Mr Wilding. The analysis of Naidu, from [33], immediately followed a submission which responded to Judge Reeds’ observation about the claim targeting the 2019 decision. Seven paragraphs from Naidu were then copied with parts emboldened. In conclusion, at [34], the point was made that the recent decision did not take account of relevant considerations and did not therefore engage with the merits of the challenge to the dishonesty findings which continued to underpin the refusal.
• 30 September 2024 – order of Upper Tribunal Judge Canavan was sealed. The order followed the oral permission hearing of 24 September 2024. The oral renewal hearing was adjourned for a second time. At [2] of the order, the background was summarised and it was noted that the lawfulness of the 2019 decision had not been challenged at the time of that preceding decision. The judge addressed the change between the original grounds and the grounds for reconsideration at [5]:
The applicant applied to renew the application at an oral hearing on 08 August 2024. The application was in time, but the grounds for renewal, in purporting to respond to Judge Reeds’ decision, included an additional points with a quite different emphasis to the original grounds. The first ground, as originally argued, made a general submission that there was no intent to deceive when the applicant (and his late wife) made the application in 2019. There was no argument of the kind later put in the renewal grounds with reference to (i) the decision in R (on the application of) Naidu v SSHD [2-16] EWCA Civ 156; or (ii) the respondent’s failure to consider the written representations that seem to have been sent with the application for entry clearance made on 18 January 2024. If those representing the applicant wanted to rely on new grounds, a formal paid application should have been made to apply for permission to amend the grounds of challenge.
Between paragraphs [7] and [13], the judge set out her concerns about the conduct of proceedings:
[…] we have made our own observations about the need to apply to amend the substance of the grounds if the applicant wished to rely on the additional points made in the grounds for renewal. What was clear from the order made by Judges Smith and Hoffman, was that any application to amend the grounds (in relation to whatever issue) ‘must’ be made by way of a paid application within 14 days from the date the order was sent i.e. by 16 September 2024.
Despite being told by Judges Smith and Hoffman that any application to amend must be made by way of a paid application through the proper channels, those representing the applicant disclosed a continuing lack of understanding of the procedures for judicial review in the Upper Tribunal. On 16 September 2024 amended grounds for review were uploaded to the CE File system. The grounds were not accompanied by a paid application by way of application notice. The amended grounds included significant revisions to the original grounds. No explanation was provided as to why those arguments were not put earlier, or why an application was not made to amend the grounds when the application for oral renewal was made, nor were the amended grounds filed properly in accordance with the direction given in the order made by Judges Smith and Hoffman.
Again, because the amended grounds were not made by way of a paid application notice, they did not come to the attention of a judge until the day before this hearing. It was only on the prompting of a judge on this panel that the solicitors were reminded of the requirement to make a paid application. This had not been done. It was only in response to this prompt that a paid application notice was filed and served on the afternoon before this hearing i.e. 23 September 2024. By this stage, the application for permission to amend the grounds was 7 days late. This is the third issue relating to timeliness that will now need to be decided.
At the hearing today, the difficulties were compounded by the fact that Mr Smith did not have instructions on what the respondent’s position is in relation to the late application to amend the grounds. In short, the apparent lack of understanding and incompetence of the applicant’s solicitors in relation to the application to amend the grounds has now prompted the need for a second adjournment.
We also observe that, despite the arguments made in the original grounds, the bundle submitted with this application did not comply with the duty of candour. Even if arguments were to be permitted in relation to the application made in 2019, a full copy of the underlying visa applications, including the SAL2 document and family certificate mentioned, do not seem to have been included in the bundle.
The Upper Tribunal now has serious concerns about the ability and understanding of those representing the applicant to conduct judicial review proceedings. Although mistakes can of course be made, those conducting judicial review proceedings in the Upper Tribunal are required to have basic competence. The continued lack of understanding disclosed by the actions of A J Solicitors does not appear to disclose the required level of knowledge of the procedures in the Upper Tribunal, even in the face of clear guidance given by Judges Smith and Hoffman in their order.
Repeated adjournments of this kind are not in the interests of justice. They waste court time and public funds. The respondent is also put to the cost of attending court for an oral renewal hearing that does not go ahead. On the last occasion, Judges Smith and Hoffman decided not to make an order in relation to costs and those representing the applicant narrowly avoided a notice to show cause in relation to the Upper Tribunal’s Hamid jurisdiction. Given the continued problems with this application, which are disproportionate to the issues involved in the underlying claim relating to a decision to refuse a visitor visa, the position is now changed. Those representing the applicant must respond to the notices to show cause set out below.
At [15], it was noted that the respondent had been “put to the additional cost of attending another hearing”. At [17], it was found that the conditions for making a wasted costs order were provisionally made out unless cause was shown to justify taking a different course:
In these circumstances, we consider that the relevant elements for a wasted costs order are made out in this case. First, the applicant’s representatives acted improperly or negligently. Second, the conduct caused the respondent to incur the unnecessary wasted cost of attending the hearing listed on 24 September 2024. Third, taken with the previous failures to follow the correct procedure, and the fact that the applicant himself is not at fault, we take the preliminary view that in all the circumstances it is just to order A J Jones Solicitors to pay the respondent’s wasted costs of the hearing on 24 September 2024.
At [20]-[21], directions were issued to enable the applicant’s representatives to show cause why a referral should not be made to the Solicitors Regulation Authority under R (Hamid) v SSHD [2012] EWHC 3070 (Admin), R (Sathivel & Ors) v SSHD [2018] EWHC 913 (Admin) and R (Shrestha) v SSHD [2018] UKUT 00242.
• 15 October 2024 – the respondent filed amended summary grounds of defence in which it was agreed that it would be appropriate to reconsider the challenged decision and that settlement negotiations were underway.
• 28 October 2024 - a consent order disposing of the underlying claim by withdrawal was approved by Upper Tribunal Judge Keith. The position in respect to the wasted costs and Hamid orders was reserved.
Evidence and Submissions
(3) In a response to the directions of Judge Canavan, the applicant’s solicitor, Ms Jones, prepared a narrative account of her conduct of the proceedings. At [5], it was acknowledged that matters were not prepared as they should have been in advance of the hearing on 29 August 2024. The backdrop to filing the paid application notice on 23 September 2024 was set out between [12] and [22]. The solicitor was armed with the amended grounds drafted by Ms Physsas on 16 September 2024, the deadline for service of a paid application notice. It was decided that consent should be sought of the respondent because this would enable a paid application to be made at £110 rather than £281. Consent was not granted until 20 September 2024. The solicitors payment card was blocked by Nat West on this date after payments for other matters did not go through. On Friday 20 and Monday 23 September 2024, the solicitor repeatedly attempted contact with Nat West to unblock the card. The card was unblocked by Nat West on 23 September 2024 and the paid application was lodged with the tribunal at 13:05 the same day. At [23], it was denied that the paid application was lodged in response to a chasing message on behalf of Judge Canavan. It was noted, at [31], that the practice involves a significant level of judicial review work in the Upper Tribunal and Administrative Court of approximately 40 matters in 2023 and 2024 and the firm had never had their competence or understanding of procedure questioned in the past.
(4) The assertions made in this document were fully supported by supporting documents and records showing the timing of correspondence between the applicant’s representatives and the respondent, and with the tribunal’s administration. Screenshots of communications with Nat West were provided which supported the banking issues which were said to have frustrated the timely payment of the fee to accompany the application notice.
(5) I have considered the applicant’s written costs submissions of 18 November 2024 and skeleton argument dated 17 March 2025. I have also considered the respondent’s written costs submission of 6 November 2024. I heard further oral submissions from the parties at the hearing of 25 March 2025. I address any submissions of relevance and substance in the discussion section below. At no time has the respondent advanced a case for wasted costs to be ordered against the applicant’s representatives.
Legal Framework
(6) The power of the Upper Tribunal to award ordinary costs and wasted costs is conferred by s.29 of the Tribunals, Courts and Enforcement Act 2007. Rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 regulates how such orders are to be made.
(7) Ridehalgh v Horsefield [1994] Ch. 205 remains the touchstone for consideration of whether to make an order for wasted costs. In his judgment, Bingham MR (as he then was) interpreted the meaning of the three breeds of professional conduct which are capable of giving rise to such an order. From 232D, he provided the following analysis:
"Improper" means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code. "Unreasonable" also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's applicant's right to a wasted costs order against a legal representative depends on showing that the latter is in breach of his duty to the court it makes no sense to superimpose a requirement under this head (but not in the case of impropriety or unreasonableness) that he is also in breach of his duty to his client.
[…]
In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenance any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence: "advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do;" an error "such as no reasonably well-informed and competent member of that profession could have made:" see Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198, 218, 220, per Lord Diplock.
(8) Under the heading of Discretion, Bingham MR said this about residual judicial discretion to decide against making such an order even if the one of the three relevant thresholds has been established:
It was submitted, in our view correctly, that the jurisdiction to make a wasted costs order is dependent at two stages on the discretion of the court. The first is at the stage of initial application, when the court is invited to give the legal representative an opportunity to show cause. This is not something to be done automatically or without careful appraisal of the relevant circumstances. The costs of the inquiry as compared with the costs claimed will always be one relevant consideration. This is a discretion, like any other, to be exercised judicially, but judges may not infrequently decide that further proceedings are not likely to be justified. The second discretion arises at the final stage. Even if the court is satisfied that a legal representative has acted improperly, unreasonably or negligently and that such conduct has caused the other side to incur an identifiable sum of wasted costs, it is not bound to make an order, but in that situation it would of course have to give sustainable reasons for exercising its discretion against making an order.
(9) In the later leading authority of Tolstoy-Miloslavsky v Aldington [1996] 1 W.L.R. 736, Rose LJ referred to “the jurisdiction to make a wasted costs order must be exercised with care and only in a clear case”. This resonates with [19] of the First-tier Tribunal Presidential Guidance Note No 1 of 2015, which while not of binding effect in the Upper Tribunal, is instructive:
In circumstances where there has been a breach of a direction by, for example, failure to lodge documentary evidence, the party in breach should normally be given the opportunity to remedy the situation before any order for wasted costs is made. The issuing of a reminder to this party should be a prerequisite before a wasted costs order is made. Even where a hearing has to be adjourned because of an avoidable omission by one party, such as inadequate preparation, it would not normally be appropriate to make an order for costs. Representatives have many demands on their time and are subject to a multitude of pressures, which may lead even in well-managed organisations to occasional lapses. The making of an order for wasted or unreasonable costs should be a very rare event.
(10) Kerseviciene v Quadri [2022] EWHC 1757 (QB) considered wasted costs in the context of an oral application for permission to appeal. Here it was observed that caution is required to guard against wasted costs orders being used as a means to award costs for a party’s entirely voluntary attendance at a hearing. Much like an oral permission to appeal hearing, the general rule is that the respondent is not ordinarily entitled to their costs for instructing counsel to make oral submissions at an oral renewal hearing.
Discussion
(11) Both the issues of whether to award wasted costs and to make a Hamid order coalesce around two broad factual questions: (1) to what extent did the applicant’s case change from the initial grounds of challenge to the amended grounds of challenge?; (2) to what degree was the applicant’s solicitor at fault for the delay in paying the fee to effectively lodge the application notice with the tribunal to amend the grounds. The answer to these questions assist in the resolution of the wasted costs and Hamid issues and will, in turn, inform how the tribunal should approach the costs which should move between the parties on a conventional footing following the resolution of the underlying claim by consent. I will deal with each question in turn.
To what extent did the applicant’s case change from the initial grounds of challenge to the amended grounds of challenge?
(12) The catalyst for the difficulties which have tainted these proceedings was undoubtedly the introduction of Naidu as an authority which assisted the applicant’s case. I have summarised the procedural history in some detail because it makes it tolerably clear that Naidu was, at least in part, a direct response to the points taken against the claim in the summary grounds of defence which were then adopted by Judge Reeds in refusing permission on the papers. The first reference to Naidu came with the application for reconsideration and followed an introductory paragraph which included that the “following brief submissions [are] in response to the refusal of Upper Tribunal Judge Reeds”. Here, the responsive point was summarised in a brief single paragraph, but the argument was made clearer in the amended grounds drafted by Ms Physsas. From [32] of her amended grounds, she expressly referred to the point taken by Judge Reeds that the claim was a long out of time challenge to the 2019 decision. Naidu is strong authority for the proposition that it is not appropriate for the respondent to seek to tether a current claim to an earlier decision which they continue to rely upon. The other side of the same coin was the central thrust of the claim, as it had always been framed, that the respondent was not entitled in law to rely, without further analysis of the current representations, on the earlier decision which gave rise to a general bar of entry on suitability grounds. If the claim took on a different shape over the course of the proceedings, I am satisfied that the summary grounds of defence, which were relied upon by Judge Reeds in refusing permission, played a part in moulding that shape.
(13) It is instructive that the respondent has not picked up the baton in seeking to apply for wasted costs following the order of Judge Canavan. No submissions have been advanced, either in writing or orally, that the re-framing of the applicant’s case (if it can be properly characterised in that way) amounted to an improper, unreasonable or negligent act. This is hardly surprising when it is considered that the respondent considered the amended grounds of challenge and took the considered view that they could no longer seek to resist the claim. It would be difficult to cast the introduction of ultimately successful grounds as being negligent, unreasonable or improper. On the contrary, the applicant may have had cause for complaint if an argument had not been advanced on his behalf when it has plainly proved to be so convincing that that the respondent no longer sought to contest the claim.
(14) I am persuaded that the central principle which underpins the ratio of Naidu was always in play in the original grounds. The applicant’s case was always that the respondent adopted an unlawful approach in simply looking to the 2019 decision to maintain the suitability decision without also meaningfully assessing the evidence and representations which had been relied upon to show that the 2019 decision should no longer apply. What Naidu also brought to the claim was a counter point to the notion that the claim was in some fashion out of time because is was a disguised challenge to the lawfulness of the 2019 decision.
(15) Notwithstanding these observations, it is also fair to say that the amended grounds put the case more persuasively by directing the reader to the parts of Naidu which made the claim difficult to resist. As an exercise in written advocacy, it was manifestly a stronger effort than the original grounds because it quickly caused the respondent to see the force in the applicant’s case and brought about the desired outcome. That being said, Mr Wilding properly observed in his oral submission that a well-resourced and well-represented party such as the Secretary of State for the Home Department can be reasonably expected to have some familiarity with leading authorities in public law and it should not be necessary reproduce lengthy tracts of caselaw before the force of the principled argument becomes clear.
(16) Overall, when I consider all of these factors together, it appears to me that while there may have been a “different emphasis” in the amended grounds before Judge Canavan, this was not a fundamentally different case or argument.
To what degree was the applicant’s solicitor at fault for the delay in paying the fee to effectively lodge the application notice with the tribunal to amend the grounds?
(17) I have no cause to doubt the credibility of the account provided by Ms Jones in the response to the order to show cause. The sequence of events she has described is amply supported by records of her dealings with the respondent, the tribunal and Nat West Bank. The respondent has not challenged any of the factual assertions which have been made. I am entirely satisfied that the payment of the fee required to properly lodge the application notice was not prompted by the email from the tribunal on 23 September, but was instead motivated by the lifting of the block on the payment card the same day. In view of difficult procedural backdrop and previous failings, it is not difficult to see why Judge Canavan inferred that it was only upon being reminded of the need to take this essential step that it happened. However, I have had the benefit of a much fuller evidential picture which reveals that this was a coincidence.
(18) While banking problems contributed to the delay in paying the required fee, these issues do not account for the decision taken by Ms Jones to delay paying the required fee in the hope of securing the respondent’s consent for the application and thereby necessitate the payment of a lower fee. The tribunal had provided a clear deadline for this procedural step to be taken and it was not open to Ms Jones to disregard it in the hope or expectation that a lower fee might be payable in the future, after the tribunal-set deadline has passed. Procedural rigour is to be taken seriously in this jurisdiction and the orders of the tribunal are not to be taken lightly. The desire to secure a lower fee for her client should have made way for the reality that there was simply no time for anything other than lodging the application on 16 September 2024. This was an unwise and ill-judged decision, but not one which could be characterised reaching the high bar of negligent, unreasonable or improper. Put simply, this was a professional mistake which I have little doubt will not be repeated, nor should it.
Conclusions in the context of wasted costs and a Hamid order
(19) The grounds of challenge could have been put more strongly from the outset of the claim and the delay in lodging a paid application notice was an error of judgement, but these professional lapses fall a considerable distance short of kind of egregious professional conduct which could attract a sanction such as wasted costs or form the subject of a Hamid order. The authorities are clear about the care with which such extreme judicial powers should be used. These sanctions are to be used sparingly when the circumstances demand such measures. We are not in that territory here.
(20) I am satisfied that the applicant’s representatives have shown cause not to be subject to a wasted costs or Hamid order.
Conventional inter-party costs
(21) In considering the direction in which costs should move between the parties on resolution of the underlying claim, I remind myself of the general rule that costs should follow the event. The event which falls to be considered for the purposes of this claim is that the applicant ultimately succeeded in that the respondent accepted that the decision he challenged ought to be reconsidered. He secured the relief he had always sought. In the ordinary course of events, he would recover the reasonable costs he had incurred in bringing a successful claim. A further factor to be taken into consideration is that even if the claim had failed, the respondent would generally only recover her costs expended in resisting the claim until permission was refused on the papers. The respondent does not generally recover her costs for instructing counsel to appear at an oral renewal hearing. The reality is that the respondent elected to be represented at the two adjourned oral renewal hearings. In doing so, a litigation risk was willingly taken that the hearings may become more complicated or challenging.
(22) However, for the reasons I have explained above, I am satisfied that there was every prospect that these proceedings were likely to have been resolved much earlier than they were with lesser costs incurred on both side if the applicant’s case had been put more fully and strongly from the outset of the claim. The position ultimately adopted by the respondent was likely to have been taken considerably sooner if the applicant’s case had been more fully developed with the required clarity at an earlier stage of the proceedings.
(23) Judge Smith has already ordered that there be no costs awarded for the August renewal hearing. Ms Jones’ error of judgement which was partially responsible for the adjournment of the hearing of 24 September 2024 which drives me to conclude that no costs should be paid for this hearing.
(24) I find that there is good reason to depart from the general rule of all reasonable costs being awarded to the successful party. This is because the original grounds of challenge could have been expressed with greater clarity and the decision to delay lodging the paid application was a significant error of judgement hampering the efficient progress of the proceedings. The parties were agreed at the hearing that it would be open to me to apportion costs on a percentage basis if I found there to be good reason for doing so. Considering matters holistically, I conclude that it is appropriate, just and fair that the respondent pay 75% of the applicant’s reasonable costs up to and excluding the hearing of 29 August 2024.
Permission to appeal to the Court of Appeal
(25) Neither party has applied for permission to appeal. In any event, I have considered, and refused permission to appeal to the Court of Appeal, as there is no arguable error of law in my decision.
Signed: P Lodato
Upper Tribunal Judge Lodato
Dated: 10 April 2025
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 11.04.2025
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
There is provision for an appeal against this decision of the Upper Tribunal to the Court of Appeal on a point of law only. If any party wishes to appeal they must first apply for permission from the Upper Tribunal. If the Upper Tribunal refuses permission, then the party wishing to appeal can apply for permission from the Court of Appeal itself.
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On making an application to the Upper Tribunal for permission to appeal against the Upper Tribunal decision, you must also lodge with the Upper Tribunal a fee of £110.00 or an application for help with fees.
In the Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review
In the matter of an application for Judicial Review
The King on the application of
Osman Shuti
Applicant
and
Secretary of State for the Home Department
Respondent
NOTIFICATION of the Judge’s decision
On the application for an order as to costs and following consideration of the documents lodged by the parties and having heard Mr Wilding of counsel, instructed by the applicant, and Mr Smith of counsel, for the respondent, at a hearing on 25 March 2025
Order by Upper Tribunal Judge Lodato:
I ORDER the respondent to pay 75% of the applicant’s conventional and reasonable costs expended in preparing the application for permission to bring judicial review proceedings up to and excluding the hearing of 29 August 2024.
I REFUSE to order the applicant’s representative to pay wasted costs.
I REFUSE to make a Hamid order against the applicant’s representative.
Reasons
Introduction
(1) In an order sealed on 30 September 2024, following an oral renewal hearing listed on 24 September 2024, Upper Tribunal Judge Canavan made directions to the applicant’s representatives to show cause why wasted costs and Hamid orders should not be made. This was in the wake of the hearing being adjourned once it became clear that the required fee to lodge an agreed application notice to amend the grounds of challenge had not been paid on time. The matter came before me on 25 March 2025 to decide whether cause had been shown and to determine the ordinary costs which should move between the parties following the resolution of the underlying claim by consent. At the conclusion of the hearing, I explained that I had concluded that cause had been shown not to make wasted costs and Hamid orders, but that I would reflect on the ordinary costs order and set out all decisions in a reserved decision. These are my reasons for the decisions going to wasted costs, the Hamid question and conventional costs.
Procedural background
(2) The procedural background which led to the claim being compromised and the hearing before me is of importance in establishing where any fault lies in how this matter was prepared. Below is a chronology of the key procedural events:
• 14 May 2024 – Mr Wilding, of counsel, settled detailed grounds challenging the respondent’s decision, dated 13 February 2024, to refuse the applicant’s application for a visit visa. Of the two grounds of challenge, it is only necessary to address the first which was headed “irrational and unlawful reliance on false representations from 2019 decision without showing any intent to deceive”. At [11], it was suggested that the reliance on the 2019 decision was irrational as was the failure to engage with the reasoning in that decision. A similar point was made at [13] and [15] where it was noted that the respondent was wrong not to revisit the previous rationale from 2019. For reasons which will become clear, it is important to note that the grounds did not include any express reference to R (Naidu) v SSHD [2016] EWCA Civ 156.
• 17 July 2024 – the respondent filed their acknowledgement of service and summary grounds of defence. At [10]-[11] of the summary grounds, it was argued that the claim was, in reality, an egregious and abusive (see [11e]) out of time challenge to the lawfulness of the 2019 decision taken on suitability grounds founded on false and dishonest representations.
• 1 August 2024 – the application for permission was refused on the papers by Upper Tribunal Judge Reeds. At [3] of her decision, the judge gave the following reasons:
[…] In reality the applicants do not seek to challenge the present decision but the lawfulness of the 2019 decision. However the applicants have not sought to challenge that finding at the time that it was made. The history shows that no such challenges have been made in the previous applications and to do so now would be out of time. Furthermore when making the 2019 decision, the respondent was entitled to find that the applicant had been given the opportunity to disclose the information in the previous application.
• 8 August 2024 – those representing the applicant lodged an application for reconsideration. The application was accompanied by a brief written argument entitled “renewed application for judicial review” drafted by Mr Wilding. At [2b], introduced by referring to “brief submissions in response to the refusal of Upper Tribunal Judge Reeds”, the following point was made:
The claimant submits that in principle if a claimant can show that a previous decision was made unlawfully then the respondent cannot rely on that unlawful decision to apply mandatory provisions. This is consistent with the decision of the Court of Appeal in Naidu, R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 156.
• 2 September 2024 – the order of Upper Tribunal Judge Smith was sealed following an oral renewal hearing which was adjourned. Matters relating to delay took centre stage at [3]-[4] in the following terms:
Permission was refused by UTJ Reeds on 1 August 2024. In relation to the Applicants’ first ground of challenge, she observed that rather than being a challenge to the Decision, it appeared to be a challenge to an earlier decision in 2019 and therefore there was a point as to delay.
The Respondent has relied on the point in relation to this delay at [10] of her summary grounds. There has been no response to that point from the Applicant. In addition, by a letter dated 27 August 2024 uploaded to CE file, GLD informed the Tribunal that the Respondent wishes to take an additional point on the timeliness of the application. That point is that the application was issued one day beyond the three-month longstop which runs from the date of Decision not the date when it was sent or received. We gave permission for her to do so at the renewed hearing. We observe that, as a matter of practice, that request should generally have been made by paid application with a request to amend the summary grounds. However, on this occasion we do not insist on an application, first because the point is a very limited one and could have been taken at the hearing in any event and second, there is no need to amend the summary grounds to take the point. The onus is on the Applicant to deal with timeliness. For that reason, we have given the Applicant time to apply to amend his grounds to deal with this point and the point made at [10] of the Respondent’s summary grounds as picked up by Judge Reeds in her decision refusing permission.
It was noted that repeated and unpaid applications had been made to adjourn the oral renewal hearing because Mr Wilding was unavailable. In commenting on the lack of merit to those applications, it was observed that “[…] there is no reason why any particular barrister needs to represent in this case. Another barrister would be quite able to do so, relying on the grounds drafted by Mr Wilding with such amendments as the applicant may wish to make in accordance with our above permission to amend”. The application to adjourn was ultimately granted. The failures to make paid applications to adjourn were referred to in the context of Hamid directions at [9]. It was ordered, without opposition from the respondent, that there should be no costs paid for this hearing.
• 16 September 2024 – in amended grounds for judicial review drafted by Ms Physsas, of counsel, all amendments were emphasised by underlining. Additions included submissions going to timeliness ([4]-[7]), an authority relating to the burden of proving dishonesty ([18]) and modest amendments touching on ground two. Between [19] and [35], ground one was expressed in greater detail than in the original grounds, and application for reconsideration, drafted by Mr Wilding. The analysis of Naidu, from [33], immediately followed a submission which responded to Judge Reeds’ observation about the claim targeting the 2019 decision. Seven paragraphs from Naidu were then copied with parts emboldened. In conclusion, at [34], the point was made that the recent decision did not take account of relevant considerations and did not therefore engage with the merits of the challenge to the dishonesty findings which continued to underpin the refusal.
• 30 September 2024 – order of Upper Tribunal Judge Canavan was sealed. The order followed the oral permission hearing of 24 September 2024. The oral renewal hearing was adjourned for a second time. At [2] of the order, the background was summarised and it was noted that the lawfulness of the 2019 decision had not been challenged at the time of that preceding decision. The judge addressed the change between the original grounds and the grounds for reconsideration at [5]:
The applicant applied to renew the application at an oral hearing on 08 August 2024. The application was in time, but the grounds for renewal, in purporting to respond to Judge Reeds’ decision, included an additional points with a quite different emphasis to the original grounds. The first ground, as originally argued, made a general submission that there was no intent to deceive when the applicant (and his late wife) made the application in 2019. There was no argument of the kind later put in the renewal grounds with reference to (i) the decision in R (on the application of) Naidu v SSHD [2-16] EWCA Civ 156; or (ii) the respondent’s failure to consider the written representations that seem to have been sent with the application for entry clearance made on 18 January 2024. If those representing the applicant wanted to rely on new grounds, a formal paid application should have been made to apply for permission to amend the grounds of challenge.
Between paragraphs [7] and [13], the judge set out her concerns about the conduct of proceedings:
[…] we have made our own observations about the need to apply to amend the substance of the grounds if the applicant wished to rely on the additional points made in the grounds for renewal. What was clear from the order made by Judges Smith and Hoffman, was that any application to amend the grounds (in relation to whatever issue) ‘must’ be made by way of a paid application within 14 days from the date the order was sent i.e. by 16 September 2024.
Despite being told by Judges Smith and Hoffman that any application to amend must be made by way of a paid application through the proper channels, those representing the applicant disclosed a continuing lack of understanding of the procedures for judicial review in the Upper Tribunal. On 16 September 2024 amended grounds for review were uploaded to the CE File system. The grounds were not accompanied by a paid application by way of application notice. The amended grounds included significant revisions to the original grounds. No explanation was provided as to why those arguments were not put earlier, or why an application was not made to amend the grounds when the application for oral renewal was made, nor were the amended grounds filed properly in accordance with the direction given in the order made by Judges Smith and Hoffman.
Again, because the amended grounds were not made by way of a paid application notice, they did not come to the attention of a judge until the day before this hearing. It was only on the prompting of a judge on this panel that the solicitors were reminded of the requirement to make a paid application. This had not been done. It was only in response to this prompt that a paid application notice was filed and served on the afternoon before this hearing i.e. 23 September 2024. By this stage, the application for permission to amend the grounds was 7 days late. This is the third issue relating to timeliness that will now need to be decided.
At the hearing today, the difficulties were compounded by the fact that Mr Smith did not have instructions on what the respondent’s position is in relation to the late application to amend the grounds. In short, the apparent lack of understanding and incompetence of the applicant’s solicitors in relation to the application to amend the grounds has now prompted the need for a second adjournment.
We also observe that, despite the arguments made in the original grounds, the bundle submitted with this application did not comply with the duty of candour. Even if arguments were to be permitted in relation to the application made in 2019, a full copy of the underlying visa applications, including the SAL2 document and family certificate mentioned, do not seem to have been included in the bundle.
The Upper Tribunal now has serious concerns about the ability and understanding of those representing the applicant to conduct judicial review proceedings. Although mistakes can of course be made, those conducting judicial review proceedings in the Upper Tribunal are required to have basic competence. The continued lack of understanding disclosed by the actions of A J Solicitors does not appear to disclose the required level of knowledge of the procedures in the Upper Tribunal, even in the face of clear guidance given by Judges Smith and Hoffman in their order.
Repeated adjournments of this kind are not in the interests of justice. They waste court time and public funds. The respondent is also put to the cost of attending court for an oral renewal hearing that does not go ahead. On the last occasion, Judges Smith and Hoffman decided not to make an order in relation to costs and those representing the applicant narrowly avoided a notice to show cause in relation to the Upper Tribunal’s Hamid jurisdiction. Given the continued problems with this application, which are disproportionate to the issues involved in the underlying claim relating to a decision to refuse a visitor visa, the position is now changed. Those representing the applicant must respond to the notices to show cause set out below.
At [15], it was noted that the respondent had been “put to the additional cost of attending another hearing”. At [17], it was found that the conditions for making a wasted costs order were provisionally made out unless cause was shown to justify taking a different course:
In these circumstances, we consider that the relevant elements for a wasted costs order are made out in this case. First, the applicant’s representatives acted improperly or negligently. Second, the conduct caused the respondent to incur the unnecessary wasted cost of attending the hearing listed on 24 September 2024. Third, taken with the previous failures to follow the correct procedure, and the fact that the applicant himself is not at fault, we take the preliminary view that in all the circumstances it is just to order A J Jones Solicitors to pay the respondent’s wasted costs of the hearing on 24 September 2024.
At [20]-[21], directions were issued to enable the applicant’s representatives to show cause why a referral should not be made to the Solicitors Regulation Authority under R (Hamid) v SSHD [2012] EWHC 3070 (Admin), R (Sathivel & Ors) v SSHD [2018] EWHC 913 (Admin) and R (Shrestha) v SSHD [2018] UKUT 00242.
• 15 October 2024 – the respondent filed amended summary grounds of defence in which it was agreed that it would be appropriate to reconsider the challenged decision and that settlement negotiations were underway.
• 28 October 2024 - a consent order disposing of the underlying claim by withdrawal was approved by Upper Tribunal Judge Keith. The position in respect to the wasted costs and Hamid orders was reserved.
Evidence and Submissions
(3) In a response to the directions of Judge Canavan, the applicant’s solicitor, Ms Jones, prepared a narrative account of her conduct of the proceedings. At [5], it was acknowledged that matters were not prepared as they should have been in advance of the hearing on 29 August 2024. The backdrop to filing the paid application notice on 23 September 2024 was set out between [12] and [22]. The solicitor was armed with the amended grounds drafted by Ms Physsas on 16 September 2024, the deadline for service of a paid application notice. It was decided that consent should be sought of the respondent because this would enable a paid application to be made at £110 rather than £281. Consent was not granted until 20 September 2024. The solicitors payment card was blocked by Nat West on this date after payments for other matters did not go through. On Friday 20 and Monday 23 September 2024, the solicitor repeatedly attempted contact with Nat West to unblock the card. The card was unblocked by Nat West on 23 September 2024 and the paid application was lodged with the tribunal at 13:05 the same day. At [23], it was denied that the paid application was lodged in response to a chasing message on behalf of Judge Canavan. It was noted, at [31], that the practice involves a significant level of judicial review work in the Upper Tribunal and Administrative Court of approximately 40 matters in 2023 and 2024 and the firm had never had their competence or understanding of procedure questioned in the past.
(4) The assertions made in this document were fully supported by supporting documents and records showing the timing of correspondence between the applicant’s representatives and the respondent, and with the tribunal’s administration. Screenshots of communications with Nat West were provided which supported the banking issues which were said to have frustrated the timely payment of the fee to accompany the application notice.
(5) I have considered the applicant’s written costs submissions of 18 November 2024 and skeleton argument dated 17 March 2025. I have also considered the respondent’s written costs submission of 6 November 2024. I heard further oral submissions from the parties at the hearing of 25 March 2025. I address any submissions of relevance and substance in the discussion section below. At no time has the respondent advanced a case for wasted costs to be ordered against the applicant’s representatives.
Legal Framework
(6) The power of the Upper Tribunal to award ordinary costs and wasted costs is conferred by s.29 of the Tribunals, Courts and Enforcement Act 2007. Rule 10 of the Tribunal Procedure (Upper Tribunal) Rules 2008 regulates how such orders are to be made.
(7) Ridehalgh v Horsefield [1994] Ch. 205 remains the touchstone for consideration of whether to make an order for wasted costs. In his judgment, Bingham MR (as he then was) interpreted the meaning of the three breeds of professional conduct which are capable of giving rise to such an order. From 232D, he provided the following analysis:
"Improper" means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code. "Unreasonable" also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's applicant's right to a wasted costs order against a legal representative depends on showing that the latter is in breach of his duty to the court it makes no sense to superimpose a requirement under this head (but not in the case of impropriety or unreasonableness) that he is also in breach of his duty to his client.
[…]
In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenance any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence: "advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do;" an error "such as no reasonably well-informed and competent member of that profession could have made:" see Saif Ali v. Sydney Mitchell & Co. [1980] A.C. 198, 218, 220, per Lord Diplock.
(8) Under the heading of Discretion, Bingham MR said this about residual judicial discretion to decide against making such an order even if the one of the three relevant thresholds has been established:
It was submitted, in our view correctly, that the jurisdiction to make a wasted costs order is dependent at two stages on the discretion of the court. The first is at the stage of initial application, when the court is invited to give the legal representative an opportunity to show cause. This is not something to be done automatically or without careful appraisal of the relevant circumstances. The costs of the inquiry as compared with the costs claimed will always be one relevant consideration. This is a discretion, like any other, to be exercised judicially, but judges may not infrequently decide that further proceedings are not likely to be justified. The second discretion arises at the final stage. Even if the court is satisfied that a legal representative has acted improperly, unreasonably or negligently and that such conduct has caused the other side to incur an identifiable sum of wasted costs, it is not bound to make an order, but in that situation it would of course have to give sustainable reasons for exercising its discretion against making an order.
(9) In the later leading authority of Tolstoy-Miloslavsky v Aldington [1996] 1 W.L.R. 736, Rose LJ referred to “the jurisdiction to make a wasted costs order must be exercised with care and only in a clear case”. This resonates with [19] of the First-tier Tribunal Presidential Guidance Note No 1 of 2015, which while not of binding effect in the Upper Tribunal, is instructive:
In circumstances where there has been a breach of a direction by, for example, failure to lodge documentary evidence, the party in breach should normally be given the opportunity to remedy the situation before any order for wasted costs is made. The issuing of a reminder to this party should be a prerequisite before a wasted costs order is made. Even where a hearing has to be adjourned because of an avoidable omission by one party, such as inadequate preparation, it would not normally be appropriate to make an order for costs. Representatives have many demands on their time and are subject to a multitude of pressures, which may lead even in well-managed organisations to occasional lapses. The making of an order for wasted or unreasonable costs should be a very rare event.
(10) Kerseviciene v Quadri [2022] EWHC 1757 (QB) considered wasted costs in the context of an oral application for permission to appeal. Here it was observed that caution is required to guard against wasted costs orders being used as a means to award costs for a party’s entirely voluntary attendance at a hearing. Much like an oral permission to appeal hearing, the general rule is that the respondent is not ordinarily entitled to their costs for instructing counsel to make oral submissions at an oral renewal hearing.
Discussion
(11) Both the issues of whether to award wasted costs and to make a Hamid order coalesce around two broad factual questions: (1) to what extent did the applicant’s case change from the initial grounds of challenge to the amended grounds of challenge?; (2) to what degree was the applicant’s solicitor at fault for the delay in paying the fee to effectively lodge the application notice with the tribunal to amend the grounds. The answer to these questions assist in the resolution of the wasted costs and Hamid issues and will, in turn, inform how the tribunal should approach the costs which should move between the parties on a conventional footing following the resolution of the underlying claim by consent. I will deal with each question in turn.
To what extent did the applicant’s case change from the initial grounds of challenge to the amended grounds of challenge?
(12) The catalyst for the difficulties which have tainted these proceedings was undoubtedly the introduction of Naidu as an authority which assisted the applicant’s case. I have summarised the procedural history in some detail because it makes it tolerably clear that Naidu was, at least in part, a direct response to the points taken against the claim in the summary grounds of defence which were then adopted by Judge Reeds in refusing permission on the papers. The first reference to Naidu came with the application for reconsideration and followed an introductory paragraph which included that the “following brief submissions [are] in response to the refusal of Upper Tribunal Judge Reeds”. Here, the responsive point was summarised in a brief single paragraph, but the argument was made clearer in the amended grounds drafted by Ms Physsas. From [32] of her amended grounds, she expressly referred to the point taken by Judge Reeds that the claim was a long out of time challenge to the 2019 decision. Naidu is strong authority for the proposition that it is not appropriate for the respondent to seek to tether a current claim to an earlier decision which they continue to rely upon. The other side of the same coin was the central thrust of the claim, as it had always been framed, that the respondent was not entitled in law to rely, without further analysis of the current representations, on the earlier decision which gave rise to a general bar of entry on suitability grounds. If the claim took on a different shape over the course of the proceedings, I am satisfied that the summary grounds of defence, which were relied upon by Judge Reeds in refusing permission, played a part in moulding that shape.
(13) It is instructive that the respondent has not picked up the baton in seeking to apply for wasted costs following the order of Judge Canavan. No submissions have been advanced, either in writing or orally, that the re-framing of the applicant’s case (if it can be properly characterised in that way) amounted to an improper, unreasonable or negligent act. This is hardly surprising when it is considered that the respondent considered the amended grounds of challenge and took the considered view that they could no longer seek to resist the claim. It would be difficult to cast the introduction of ultimately successful grounds as being negligent, unreasonable or improper. On the contrary, the applicant may have had cause for complaint if an argument had not been advanced on his behalf when it has plainly proved to be so convincing that that the respondent no longer sought to contest the claim.
(14) I am persuaded that the central principle which underpins the ratio of Naidu was always in play in the original grounds. The applicant’s case was always that the respondent adopted an unlawful approach in simply looking to the 2019 decision to maintain the suitability decision without also meaningfully assessing the evidence and representations which had been relied upon to show that the 2019 decision should no longer apply. What Naidu also brought to the claim was a counter point to the notion that the claim was in some fashion out of time because is was a disguised challenge to the lawfulness of the 2019 decision.
(15) Notwithstanding these observations, it is also fair to say that the amended grounds put the case more persuasively by directing the reader to the parts of Naidu which made the claim difficult to resist. As an exercise in written advocacy, it was manifestly a stronger effort than the original grounds because it quickly caused the respondent to see the force in the applicant’s case and brought about the desired outcome. That being said, Mr Wilding properly observed in his oral submission that a well-resourced and well-represented party such as the Secretary of State for the Home Department can be reasonably expected to have some familiarity with leading authorities in public law and it should not be necessary reproduce lengthy tracts of caselaw before the force of the principled argument becomes clear.
(16) Overall, when I consider all of these factors together, it appears to me that while there may have been a “different emphasis” in the amended grounds before Judge Canavan, this was not a fundamentally different case or argument.
To what degree was the applicant’s solicitor at fault for the delay in paying the fee to effectively lodge the application notice with the tribunal to amend the grounds?
(17) I have no cause to doubt the credibility of the account provided by Ms Jones in the response to the order to show cause. The sequence of events she has described is amply supported by records of her dealings with the respondent, the tribunal and Nat West Bank. The respondent has not challenged any of the factual assertions which have been made. I am entirely satisfied that the payment of the fee required to properly lodge the application notice was not prompted by the email from the tribunal on 23 September, but was instead motivated by the lifting of the block on the payment card the same day. In view of difficult procedural backdrop and previous failings, it is not difficult to see why Judge Canavan inferred that it was only upon being reminded of the need to take this essential step that it happened. However, I have had the benefit of a much fuller evidential picture which reveals that this was a coincidence.
(18) While banking problems contributed to the delay in paying the required fee, these issues do not account for the decision taken by Ms Jones to delay paying the required fee in the hope of securing the respondent’s consent for the application and thereby necessitate the payment of a lower fee. The tribunal had provided a clear deadline for this procedural step to be taken and it was not open to Ms Jones to disregard it in the hope or expectation that a lower fee might be payable in the future, after the tribunal-set deadline has passed. Procedural rigour is to be taken seriously in this jurisdiction and the orders of the tribunal are not to be taken lightly. The desire to secure a lower fee for her client should have made way for the reality that there was simply no time for anything other than lodging the application on 16 September 2024. This was an unwise and ill-judged decision, but not one which could be characterised reaching the high bar of negligent, unreasonable or improper. Put simply, this was a professional mistake which I have little doubt will not be repeated, nor should it.
Conclusions in the context of wasted costs and a Hamid order
(19) The grounds of challenge could have been put more strongly from the outset of the claim and the delay in lodging a paid application notice was an error of judgement, but these professional lapses fall a considerable distance short of kind of egregious professional conduct which could attract a sanction such as wasted costs or form the subject of a Hamid order. The authorities are clear about the care with which such extreme judicial powers should be used. These sanctions are to be used sparingly when the circumstances demand such measures. We are not in that territory here.
(20) I am satisfied that the applicant’s representatives have shown cause not to be subject to a wasted costs or Hamid order.
Conventional inter-party costs
(21) In considering the direction in which costs should move between the parties on resolution of the underlying claim, I remind myself of the general rule that costs should follow the event. The event which falls to be considered for the purposes of this claim is that the applicant ultimately succeeded in that the respondent accepted that the decision he challenged ought to be reconsidered. He secured the relief he had always sought. In the ordinary course of events, he would recover the reasonable costs he had incurred in bringing a successful claim. A further factor to be taken into consideration is that even if the claim had failed, the respondent would generally only recover her costs expended in resisting the claim until permission was refused on the papers. The respondent does not generally recover her costs for instructing counsel to appear at an oral renewal hearing. The reality is that the respondent elected to be represented at the two adjourned oral renewal hearings. In doing so, a litigation risk was willingly taken that the hearings may become more complicated or challenging.
(22) However, for the reasons I have explained above, I am satisfied that there was every prospect that these proceedings were likely to have been resolved much earlier than they were with lesser costs incurred on both side if the applicant’s case had been put more fully and strongly from the outset of the claim. The position ultimately adopted by the respondent was likely to have been taken considerably sooner if the applicant’s case had been more fully developed with the required clarity at an earlier stage of the proceedings.
(23) Judge Smith has already ordered that there be no costs awarded for the August renewal hearing. Ms Jones’ error of judgement which was partially responsible for the adjournment of the hearing of 24 September 2024 which drives me to conclude that no costs should be paid for this hearing.
(24) I find that there is good reason to depart from the general rule of all reasonable costs being awarded to the successful party. This is because the original grounds of challenge could have been expressed with greater clarity and the decision to delay lodging the paid application was a significant error of judgement hampering the efficient progress of the proceedings. The parties were agreed at the hearing that it would be open to me to apportion costs on a percentage basis if I found there to be good reason for doing so. Considering matters holistically, I conclude that it is appropriate, just and fair that the respondent pay 75% of the applicant’s reasonable costs up to and excluding the hearing of 29 August 2024.
Permission to appeal to the Court of Appeal
(25) Neither party has applied for permission to appeal. In any event, I have considered, and refused permission to appeal to the Court of Appeal, as there is no arguable error of law in my decision.
Signed: P Lodato
Upper Tribunal Judge Lodato
Dated: 10 April 2025
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 11.04.2025
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
There is provision for an appeal against this decision of the Upper Tribunal to the Court of Appeal on a point of law only. If any party wishes to appeal they must first apply for permission from the Upper Tribunal. If the Upper Tribunal refuses permission, then the party wishing to appeal can apply for permission from the Court of Appeal itself.
If you wish to apply to the Upper Tribunal for permission to appeal against the Upper Tribunal decision, you must do so in writing with reasons so that your application is received within one (calendar) month from the date this decision notice is sent, unless the Upper Tribunal states a different time: r44(4) of the Tribunal Procedure (Upper Tribunal) Rules 2008.
On making an application to the Upper Tribunal for permission to appeal against the Upper Tribunal decision, you must also lodge with the Upper Tribunal a fee of £110.00 or an application for help with fees.