News in brief – 21.05.2020

How has Covid-19 affected you?
The Costs Lawyers Standards Board (CLSB) has issued a Coronavirus Impact Survey to help it understand more about how the coronavirus pandemic is affecting Costs Lawyers and their practices.

The survey contains seven questions and takes just three minutes to complete. It will be open until Friday 22 May.

The CLSB said: “Your participation will help us get a full picture of how the profession is being affected, which is vital in enabling us to support you, your clients and your fellow practitioners during this challenging period.”

Costs counsel reaches the bench
Erica Bedford, a specialist costs barrister and member of the ACL, has been appointed to sit as a deputy district judge on the Northern Circuit. She will continue her practice from Kings Chambers.

Both parties in immigration judicial review “acted unreasonably”
Both the government and a claimant in a judicial review (JR) that became academic acted unreasonably in their conduct of the case, the High Court has ruled.

But Clive Sheldon QC, sitting as a deputy High Court judge, ruled that the claimant in R (On the application of Osman) v Secretary of State for the Home Department [2020] EWHC 47 (Admin) should have the majority of his costs.

The claimant initially issued judicial review proceedings challenging the home secretary’s decision to refuse his application for an EEA residence card as the extended family member of a Polish woman and the fact he had no right of appeal.

The case was stayed while the Home Office considered a relevant European Court of Justice ruling, during which time Mr Osman married the Polish woman, without informing the home secretary or court for nearly five months. This made the JR academic as another immigration regime applied. There then began a lengthy to-and-fro between the two over the terms of the consent order and costs.

Mr Sheldon found that, had the challenge not been rendered academic, “not only would permission have been granted, but (in the language of M v LB Croydon), it is ‘tolerably clear’ that [the claimant’s] application for judicial review would have succeeded”. Accordingly, he would have been entitled to his reasonable costs, which the home secretary “effectively acknowledged” in her initial proposal to settle and for some time thereafter.

But Mr Osman’s conduct in not notifying the home secretary of his marriage earlier was “unreasonable” – the fact of the marriage could have affected the home secretary’s approach to the litigation.

The secretary of state also acted unreasonably and/or made unreasonable offers that did not include costs, the judge ruled – this meant it was reasonable for Mr Osman to reject the offers, but not to make the counteroffers that he did given the conditions they included, such as being given permission to reside and work in the UK pending the outcome of his application, given that he had not established a right to work.

Mr Sheldon concluded: “In order to do justice overall, I consider that it would be fair and appropriate for the claimant to be entitled to his reasonable costs up until the date of his marriage.” From that date, any costs to which he would otherwise be entitled – including those of the costs hearing – should be reduced by 20% to reflect the failure to notify his marriage sooner and a further 20% for unreasonable conduct over the counteroffers.

Zainul Jafferji (instructed by Burton & Burton) for the claimant, and Shakil Najib (instructed by the Government Legal Department) for the defendant.

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Costs News
Published date
21 May 2020

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