Court of Appeal considers the approach to costs in public law proceedings.


Re: R (Tesfay & Ors) v Secretary of State for the Home Department [2016] EWCA Civ 415

The appellants, who were asylum seekers challenging their removal to Italy and Malta under the Dublin Regulations, sought their costs, where they had initially brought judicial review proceedings against the Home Secretary’s decision to refuse their human rights applications and certify in-country appeals, but withdrew their claims once she had remade the decision, in light of the Supreme Court decision in EM (Eritrea) [2014] UKSC 12.

The court accepted that success in public law proceedings had to be assessed on what was achievable. The most that these applications for judicial review could have secured was a reconsideration of the decision that was made, and success for costs purposes did not require the reconsideration to lead to a favourable outcome for the claimants.

The ‘Italy’ appellants were awarded costs, as their position on legal issued had been accepted by the Supreme Court. However, the ‘Malta’ appellants were unsuccessful, as the withdrawal of the initial decision against them had been as a result of new issues raised against the Home Secretary after the High Court had refused their judicial review applications. The decision of the Supreme Court had not, like in the case of the ‘Italy’ appellants, cast doubt on the legality of the Home Secretary’s decision against them. There were strong reasons for denying their application for costs, including the fact that they had given false accounts to the Home Secretary and the High Court.
Hugh Southey QC was involved in this case.