A deputy High Court judge was entitled to refuse an application for costs in the second of two judicial review (JR) proceedings brought in a “twin-track” strategy to have a Ugandan asylum-seeker released from detention, the Court of Appeal has ruled.
In the substantive proceedings, the applicant, who was facing deportation, had brought two JRs. In the first, he sought a stay of his removal from the UK that included an application for bail, and in the second a declaration that his detention had been unlawful for a period and an order for his release. Both were eventually withdrawn by consent after bail was agreed, with the government ordered to pay the applicant’s costs of £45,000 in the first case.
The claims for £30,000 in costs for the second JR were disputed. Deputy Judge Clare Moulder made no order as to costs on the basis that using a “twin-track approach” to secure the applicant’s release from detention was unnecessary.
The second JR was issued after the bail application was made in the first and a hearing been set down, she noted. “While it could be argued that the claimant succeeded in both proceedings, in my view the conduct of the claimant in pursuing the issue of bail in second proceedings and thereby incurring the additional costs of the second proceedings is a relevant factor in determining the issue of costs under the CPR…
“Further, to the extent that this application sought to establish unlawful detention of the claimant, that issue was not tested and there is insufficient material before me to determine the likelihood of success, though I note the poor immigration history of the claimant set out in the defendant’s submissions. It is not the case that it is ‘tolerably clear’ that the claimant would have succeeded on that part of his claim.
“This therefore supports my conclusion that in accordance with the principles laid down in [R (M) v Croydon Borough Council  EWCA Civ 595], the appropriate order in relation to this application is no order for costs.”
On appeal, the Court of Appeal, with Lord Justice Hickinbottom giving the judgment, backed the deputy judge’s decision.
He rejected the applicant’s challenge to her saying that the second claim was unnecessary duplication. “I do not take the deputy judge to have meant that the two applications were identical in nature and scope, or that there could not possibly have been – at least, at a theoretical level – a difference in result.
“Rather, in my view, she meant that, as the application for bail was set down for a prompt hearing, even though the issue concerned the liberty of the appellant, it was neither proportionate nor appropriate for the appellant to commence a second claim with the sole intention of obtaining early release on a basis which, if not entirely the same, was very little different…
“The deputy judge was entitled to conclude that, for the appellant to adopt a ‘twin track’ approach to obtaining urgent release from detention – by issuing an application for High Court bail, and a second claim including an application for interim relief for immediate release – was unnecessarily and unreasonably duplicative.
“Therefore, insofar as the appellant succeeded in obtaining the substantive relief sought in the second claim, there was good reason for denying him his costs of the second claim; and making no order for costs.”