Wasted Costs Orders – Key Case Law

Hello. My name is Ben. Um, Anwar. I'm a barrister at the 36 Group in London, practicing public and commercial law. Welcome to this webinar on wasted costs in the immigration Tribunal. In this section, I'm going to be focusing on what some of the recent case law has made off the tribunal's own wasted costs. Powers in the previous weapon are I was looking at the sources of law that underpin the wasted costs. Order jurisdiction in immigration cases in the tribunal's and those sources of law included the 2007 acts, the Tribunals, Courts and Enforcement Act on the tribunal's own procedural. So both the 2014 procedurals in the first tier tribe, you know, and also the 2008 procedure rules that apply to the upper tribunal. So against that, let's listen back Draw. What we now have to contend with is ongoing guidance from the upper tribunal. As to how these wasted costs powers ought to be excised and circumstances in which they are appropriate. We're gonna be focusing on two cases in particular which define and redefine the contours off the wasted costs, order jurisdiction in immigration cases. The first cases, called M, S, M and others. That's 2016 case, and the second case is called Allure on others. And that is a 2017 case, both from the upper tribunal, starting them with MSN. MSN concerned the first tier tribunals 2014 procedure rules on the circumstances in which a wasted costs order can be made in an appeal that is governed by those provisions and in particular, the question for the upper tribunal. Waas. Whether a wasted costs order could be made in proceedings that had Bean started before the 2014 procedurals have actually commenced and come into effect. And the answer, really in brief, is that yet a wasted costs order under the current £2014 can be made even if an appeal have Bean started before commencement dates off those rules, which I believe was the 29th of October 2014. So what the upper tribunal concluded in this case then was by looking at Section 29 off the 2007 act. Section 29 actually gives the upper tribunal the power to make wasted costs orders subject to as defined to Section 29 5 off the 2007 Act and so, rather than the a power to make a waste, of course, sort of being exclusively contained in the upper Tribunals 2008 Procedure rules. The Power is actually located in primary legislation of 2007 Act just to recap, then the 2007 acts. Section 29 Subsection four says in any proceedings mentioned in subsection one and Subsection one refers to all proceedings in the upper tribunal. The relevant tribunal may a disallow, or B, as the case may be ordered legal or other representative concerns to meet the whole or any wasted costs off. Such part off, um, as may be determined in accordance with the tribunal procedure rules and some five states that in subsection four wasted costs means any costs incurred by a party A as a result off any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee off such a representative or B, which in light of any such act or omission occurring after they were incurred, the relevant tribunal considers it is unreasonable to expect that party to pay. So again what we got there in the primary legislation is the granting off power to the upper tribunal to make a wasted costs order. Andi. There is also effectively at the definition off what wasted costs ought to be. So whilst there's an overlap clearly between the procedurals off the tribunal on and the primary legislation in which the power is contained, what MSN clarifies is that the primary legislation isn't constrained by the procedure rules. So, really, this is about the procedural being subordinate to the primary legislation. The power contained in Section 29 subsection four of the tribunals, courts and enforcement at 2007 is not limited by or to Thea Upper Tribunals 2008 procedurals Rule 10. And that is, notwithstanding some commentary in the related case of Cancino, which I mentioned in the previous Webinars at Paragraph five and Casino. That suggests that the only power that the first here tribunal has to make a wasted costs order is that contained in the procedurals. So paragraph five the discussion in Paragraph five about the power off tribunal being limited to its own procedural powers is now to be taken with a pinch of salt in casino. In fact, em, sm, goes as far as to say that that's approach is wrong. And there is this broader power contained in Section 29 that simply isn't constrained by the procedure rules. And then also another point of interpretation that the tribunal clarified in MSN is that the wording off Section 29 4 in the Tribunals, Courts and Procedure at Procedure Act story the tribunal's court and enforcement at 2007 which refers to wasted costs as may be determined in accordance with the tribunal procedure rules that again doesn't act of some kind of a break on the statutory power contained in Section 29. All that that does is it restricts the jurisdiction of the tribunal to make the order for wasted costs, uh, in relation to the amount off the costs that they can order so it doesn't actually prevent a wasted costs order from being determined. What it does is it means that the tribunal must determine the amount of costs by reference to its own tribunal procedurals. In the first year Tribunal 2014 rules in the upper tribunal, the 2000 eight rules and that point is contained. The paragraph 38 in M s m. A further illustration off how wasted costs, orders or to apply on who they apply to is given quite dramatically in the case. Off a wu'er again, that's from 2017. The question in this case waas Whether wasted costs orders can be made against a home Office presenting officer for those who may be less familiar with the tribunal procedures and appeals Home office presenting officers are civil servants who are brought into the first year on Upper Tribunal to deal with immigration appeals and asylum appeals. They are employees of the Home Office effectively have the state of self civil servant Andi. They are not necessarily at lawyers, nor do they necessarily have a legal background, though many off, um, may have some some training in that regard. And so the question Waas could claim it. Lawyers, Lawyers for the appellant's apply to the tribunal for in order for wasted costs against a home office presenting officer. The answer in a war is no. Therefore, wasted costs orders can only be made against solicitors and barristers or their legal representatives who are not home office presenting officers now. The reasoning behind the upper tribunal's decision went as follows. First of all, a prerequisite off making a wasted costs order is that the the paying party is representative has breached a duty to the court that is drawn from the major case off rivaling and horse Feld and in that case, amongst many other principles, was discussed this point that really the conduct that wasted costs orders were seeking to stigmatize and to punish was the type of conduct that required persons to be in breach of their duty to not mislead the court or their duty to assist the court in a variety of ways rather than just their duty to their client. And so the upper tribunal was picked up on this Andi, identifying the fact that before a wasted costs order can be made before that threshold of conduct he's met, there has to be a breach off the duty to the tribunal and then looking at the subsequent case law. What the tribunal identified is that there's a distinction between persons who urge it to the court and persons who don't simply part put barristers and solicitors Oh, a professional duty to the court and tribunal, and that stands from not only the common law principles behind that, but also their own ethical codes. The Bar Standards Board Code of Conduct and the S R. A. Rules that apply to solicitors conduct, and so is professional advocates. But we bear this heavy, heavy burden off having to comply with those ethical professional duties. On the other hand, nonprofessional Africa, it's who also represent parties in the tribunal. Nonprofessional advocates like Home Office presenting officers don't owe the tribunal a duty. They don't have any professional ethical codes that require them to act in particular ways or avoid certain types off behavior. For that reason, Home Office presenting officers don't owe the same duties as solicitors and barristers due to judges on the court. They are not therefore a legal or other representative, as defined in Section 29 40 the 2007 acts. They therefore fall outside off the jurisdiction of wasted costs orders Andi, as required under Section 29 5 off the 2007 act. On that discussion, you can retrace that two paragraph 25 in the upper tribunals determination in a war. The other point that emerges from a wound is that the secretary of State is the party on the other side of the appeal and is the party being represented by the Home Office presenting Officer Andi. It is the secretary of state who is responsible for the conduct off the appeal, not the home Office presenting officer who aren't personally responsible for for the litigations conduct. And that's at paragraph 29 in the judgment. So taking a step back then, this judgment was greeted with some disappointment on the part of claimant lawyers, and one can understand why, when one considers that the powerful and potent weapon off the wasted costs order only really points towards claimant lawyers, it cannot point towards home office presenting officers in either the first year or upper tribunal. But something which I've observed which is somewhat concerning, is that this decision in a wheeler, whilst it was made by President McCloskey in the upper tribunal, pulls in exactly the opposite direction. As an earlier judgment by the same President Makovsky in the case of Cancino, Paragraph 11 Cancino judgment, which was very clear about its its intention to provide guidance to the profession on how the tribunal should exercise its cost powers, he wrote this attention must also be paid to the definition off legal or other representative Inception 29 subsection six off the 2007 act. This means in inverted commas, any person exercising a right of audience or right to conduct the proceedings on his behalf. This definition clearly embraces Home office presenting officers. So exactly the opposite conclusion to that which is arrived in a wu'er three years later. Now what president, because he might say, is that in fact, in a wu'er, the specific points off the definition off a legal or other representative in 2007 act was the subject off more detailed submissions and legal arguments. Then it waas in Cancino, and that would probably be a fair comment to make. It's still the opposite conclusion to what Cancino says, but A were also justifies itself. And it's it's conclusions on the basis that, first of all, there were other tools for holding home office. Presenting officers to account one of them would be ordinary costs orders against the secretary of state for unreasonable conduct. So even if the Home Office presenting officer cannot be individually targeted with a wasted costs, order their client, the secretary of state can nevertheless be ordered to pay the costs resulting from any unreasonable conduct off the litigation. Secondly, Home Office presenting officers need to abide by their contract and there must be measures in place for them to avoid conduct which would take them outside off their contract of employment or breach any obligations and duties that they owe to their own clients and to the general public through their behavior. Thirdly, there's also the fall back position off parliament. Parliament can scrutinize the actions of the secretary of State's in particular cases. If the secretary's case of states conduct falls, Teoh certain levels, then MPs are empowered to require explanations and to hold the minister accountable, although the extent to which parliament is able to do that somewhat depends on its agenda and its schedule. So there are other safeguards against any unfairness that might arise from wasted costs, orders only being applicable to claimant lawyers and not being applicable to home office presenting officers. But as I say, it is still the same judge coming to the exactly opposite conclusion on the same question of legislation. Andi within the space of a few years, so it might be suggested that we were is perhaps open to challenge. It's unclear whether that case is going to the Court of Appeal, whether other cases might attempt to do so subsequently. But there is clearly an argument based on the Cancino approach, that Home office presenting officers should be held accountable and should fall within that definition in section 29 of the 2007 acts. But for now we have a wu'er on. The answer is no. They cannot have wasted costs orders made against them and said at the outset, I'm Veneman War Barrister at 36 group. Thank you for listening with great care and attention, I'm sure, to this webinar on wasted costs orders in immigration cases in with a particular focus on the subsequent case law, I will see you again, hopefully in the following webinar, which will look at particular areas of high risk activity that attract or may attract wasted costs, orders and similar censure and in particular, judicial review. Thanks again for listening. Take care