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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sengoz v Secretary Of State For Home Department [2001] EWCA Civ 1135 (5 July 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1135.html Cite as: [2001] EWCA Civ 1135

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Thursday, 5th July 2001

1. LORD JUSTICE POTTER: In this case the argument in relation to costs has depended essentially on a point of principle which the Legal Services Commission wish to have established against the Secretary of State in cases of this kind, namely that where the Immigration Appeal Tribunal refuse permission and permission is subsequently granted on the papers by the single Lord Justice to appeal to the Court of Appeal, the Secretary of State should bend his mind as soon as possible to the question whether or not the appeal will be opposed. It is said that, because of time wasted in that respect in this case, costs were incurred which might not otherwise have been incurred and the anxiety of the appellant increased while waiting to learn the outcome of his case.
2. Both parties accept the observations of Scott Baker J in Vauxhall v London Borough of Waltham Forest, in relation to the situation where cases are discontinued after permission is granted but before a substantive hearing, are relevant and indeed applicable in this particular case. Those observations made clear that, in the absence of a good reason to make any other order, the 'fallback' position is to make no order as to costs. The other considerations which are set out do not require elucidation save perhaps the sixth consideration, that the court should take care to ensure that it does not discourage parties settling judicial review proceedings, for example by a local authority making a concession, at an early stage. It is those words "at an early stage" which are highlighted in the application for costs in this case.
3. We would certainly wish to reiterate that the Secretary of State should, in circumstances of this kind, consider the matter critically as soon as possible and decide upon his course of action. However, each case is 'fact sensitive', and we bear in mind that the issue in this case was one of law in relation to the power or duty of the tribunal to hear oral evidence in the particular circumstances of the case rather than being an issue which called for any detailed consideration of the underlying merits. In those circumstances, it may well have been that, until the grounds had been fully considered and the matter analysed and advised upon, the Secretary of State was in no position finally to decide what his best course was. We are not satisfied that his conduct was such as to incur the necessity for an order for costs. It seems to us that the matter would certainly have been arguable before the court, and that the decision of the Secretary of State appears genuinely to have borne in mind wider considerations of fairness and hardship from the point of view of the appellant, rather than simply reflecting his view that the proceedings could not be successfully defended. I would not make an order for costs in this case and would simply order that there be no order as to costs, save in relation to the assessment under the legal aid provisions of the appellant's costs.
4. LADY JUSTICE HALE: I agree.
Order: No order as to costs; public funding assessment. (Order not part of the judgment of the court)