R (Gudanaviciene) v Immigration and Asylum First Tier Tribunal [2017] EWCA Civ 352, 11 May 2017 - judgment here

All humans make mistakes, Coroners included. Fortunately for any Coroner reading this, so long as you are merely human (and not flagrantly improper) and you don't seek to defend your errors, then you should not be ordered to pay the successful applicant’s costs of reversing your poor judgment or bad decision-making.

The Court of Appeal considered whether a judicial body should be ordered to pay the costs of a successful application to judicially review its decision where it took no part in those judicial review proceedings.

The appellant in Gudanaviciene had asked the First Tier Tribunal (FTT) to adjourn her appeal against her deportation whilst she tried to get public funding (she was already challenging the decision of the Director of Legal Aid Casework not to award her exceptional case funding[1]).   When the FTT refused to adjourn Ms G went straight to the Admin Court and, at an ex parte hearing, achieved the adjournment she wanted.  

Being ex parte the FTT and Secretary of State were given permission to apply to set aside that decision, however they both threw in the towel and the deportation proceedings remained adjourned. Neither the FTT nor the Secretary of State took any other part in the judicial review application, and so the FTT was no doubt a little put out when Ms G suggested the Tribunal should pay all her costs.

The question that arose was whether a judicial body should be ordered to pay the costs of a successful application to judicially review its decision where it took no part in those judicial review proceedings.

Ms G’s application for costs was in some difficulty, given that 13 years earlier the Court of Appeal had held in R (Davies) v Birmingham Deputy Coroner[2] that costs would only be ordered against a tribunal that did not defend an action if there had been a “flagrant instance of improper behaviour on its part”; and no such behaviour had occurred here.

However, there was also a well trodden line of authority, more recently rejuvenated by the Court of Appeal in R (M) v Croydon London Borough Council,[3] to the effect that the principles governing costs awards in the context of judicial review should not differ from the principles of general civil litigation - and so a successful JR litigant should be awarded her costs, unless there was good reason to make a different order. This included circumstances where an early consent order gave the Claimant substantially what she was seeking. The M principles had since led the Court of Appeal to uphold costs orders against other public bodies, despite early settlement.   So Ms G, or at least her solicitors who were funding her case, felt it was worth a spin.

It was submitted that the test laid down in R(Davies) v Birmingham Deputy Coroner should be revisited and a less restrictive position adopted that was closer to the approach taken in M.  Ms G argued that a judicial review claimant who had obtained the relief she sought, whether by court order or settlement, should normally be awarded her costs even where the other party to the proceedings was the tribunal that had made the decision subject to judicial review.

The Court of Appeal were not persuaded.   Where the only defendant against whom a costs order was sought was a tribunal (or other court inferior to the High Court - such as a Coroner) the line of authority exemplified by R (Davies) held sway. An order for costs should only be made in favour of a successful claimant against an inferior tribunal if the tribunal contested the claim or there had been a “flagrant instance of improper behaviour”. Otherwise there should be no order for costs.

The Court of Appeal found that it was a novel idea that any tribunal should, as a matter of normal course, be liable for paying the costs of setting aside one of its orders if the party against whom proceedings were brought did not seek to defend the tribunal’s order: M provided nothing to change that position. Indeed, the Court of Appeal in M had not been asked to consider the liability of inferior tribunals for costs orders at all. And anyway, M did not, in reality, constitute a new approach: it always had been axiomatic that, if there was a substantial defendant who opposed the order made, that defendant should pay the costs, in the absence of strong reason to the contrary.  But to award costs against the FTT (or by analogy a Coroner) would be inconsistent with the longstanding principle of judicial immunity.[4]

Of course Coroners acting very improperly will find no relief in this decision. Costs can still be awarded against a Coroner who either contests and loses a claim or if a Coroner has displayed a “flagrant instance of improper behaviour”.

  “A flagrant instance of improper behaviour”

The meaning of this phrase has not been further defined in any authority in the Coronial context. But on considering the case law from other jurisdictions (as reviewed in Davies), it must reflect something quite exceptional. The behaviour must be “improper” rather than merely “incorrect” and the word “flagrant” (from the Latin for blazing) adds a further gloss on the level of impropriety - referring to something gross and obvious.    It is likely to be satisfied only by a Coroner who acts with deliberate bias in bad faith, or purports to make an order that is obviously completely outside the Coroner’s jurisdiction. Coroners who make a bona fide mistake or an error of judgment, even if amounting to Wednesbury unreasonableness, should have complete costs protection, so long as they recognise any shortcoming and quickly agree to the remedy required to put it right.

 

[1] Successfully as it turned out – see Gudanaviciene, and others v Director of Legal Aid Casework and the Lord Chancellor (Appellants) [2014] EWCA Civ 1622

[2] [2004] 1 WLR 2739, Inquest Law Reports [2004] 96

[3] [2012] 1 WLR 2607

[4] as set out in Sirros v Moore [1975] QB 118

 

Author's note - With thanks to Alex Hutton QC for alerting me to this case