Wamala, R (on the application of) v The Secretary of State for the Home Department [2017] EWCA Civ 363

Case No C4/2014/0455[2017] EWCA Civ 363
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT (QUEEN’S BENCH DIVISION)
CLARE MOULDER SITTING AS A DEPUTY HIGH COURT JUDGE
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/05/17
Before
LORD JUSTICE DAVID RICHARDSLORD JUSTICE HICKINBOTTOM
Between
THE QUEEN ON THE APPLICATION OFAppellantFELIX BRUNNER WAMALAAppellantTHE SECRETARY OF STATE FORRespondentTHE HOME DEPARTMENTRespondent
Tom Hickman (instructed by Deighton Pierce Glynn) for AppellantRobert Kellar (instructed by Government Legal Department) for RespondentHearing Hearing date: 3 May 2017
Judgment

Introduction

[1]This is an appeal against an order made by Clare Moulder sitting as a Deputy High Court Judge (“the Deputy Judge”) on 23 January 2014 refusing the Appellant’s application for costs in judicial review proceedings in which he sought a declaration that his detention had been unlawful since 2 January 2013 and an order for his release, which was in the event compromised before determination.

The Factual Background

[2]The Appellant was born on 10 December 1970, and is a Ugandan national.[3]He arrived in the United Kingdom on 13 March 1995, and claimed asylum on the basis that, in Uganda, he had been forced to join an armed political group and had then been placed in military detention before his mother paid a bribe enabling him to escape. He said that he faced persecution upon his return.[4]He was granted temporary admission. However, on 29 November 1995, before his asylum claim had been determined, the Appellant was arrested at Heathrow Airport, with half a kilogram of cocaine which he was bringing into the UK under a Kenyan passport in the name of Brymmer Mvoi. On being charged, he pleaded guilty to drug smuggling, and was sentenced to 7 years’ imprisonment.[5]On 22 November 1996, the Secretary of State decided to deport the Appellant, presumably subject to his then-outstanding asylum claim. In January 1997, that claim was refused; and, the following month, a deportation notice served upon him. There was a delay, because his country of origin was in dispute; but, on 4 July 1999, he was duly deported to Uganda.[6]However, in breach of the deportation order, he covertly returned to the UK on 23 July 1999, i.e. less than three weeks after he had been removed.[7]He remained in the UK unlawfully, until he next came to the attention of the UK authorities in August 2006, when he was arrested although not charged with any offence. He was bailed on immigration reporting restrictions; but absconded and did not come to the attention of the UK authorities again until July 2010, when he was arrested for shoplifting, for which he was prosecuted together with various driving offences. He was given non-custodial sentences in relation to each of those charges; but was placed in immigration detention.[8]He appealed against his deportation order; but that appeal was refused on 21 June 2011, the tribunal describing the Appellant as “someone who is very willing to mislead and will do so again if given the opportunity”. Bail was refused by the High Court in August 2011, and permission to challenge his detention was refused by the High Court the following month, Clive Lewis QC sitting as a Deputy High Court Judge (as he then was) referring to the “very high risk” of both absconding and reoffending that he posed. Permission to appeal was refused by this court on 23 December 2011, as totally without merit.[9]The following day (24 December 2011), efforts to remove the Appellant from the UK failed. During that attempt, there was some violence, the circumstances of which are in dispute, the Secretary of State saying that the removal had to be aborted when the Appellant became violent and disruptive, whilst the Appellant says that he was mistreated by the officers seeking to remove him unlawfully. The following day, the Appellant was examined by a GP, and photographs were taken of his injuries. On 26 December 2011, he registered a written complaint for investigation by Professional Standards Unit of the UK Border Agency (“the UKBA”); and he reported the matter to the police. He indicated to the UKBA that he considered the violence used upon him to be a breach of article 3 of the European Convention on Human Rights (“the EHCR”), and he proposed issuing private law proceedings for assault against those officers.[10]In support of that claim, the Appellant relied upon a report of Dr Charmain Goldwyn, a Medical Justice volunteer doctor, who examined him at Colnbrook IRC on 4 January 2012. That examination was primarily directed towards the consequences of the events on 24 December 2011, in respect of which Dr Goldwyn concluded in her report of 30 January 2012 that he was “highly likely to have been injured on his attempted removal…” (paragraph O1). However, she also observed that the Appellant had a scar on his leg, which “suggests a blow from an instrument from above. It could have been caused by a downward sweep of a gun point or other sharp ended weapon” (paragraph O6). She noted in her conclusion (at paragraph O9):
“I am aware that significant credibility issues were raised during the asylum process. However by his manner when he told me of his instrumental rape, by his general downcast attitude, together with the evidence of the scars around his right knee, it is my professional opinion that it is highly likely that [the Appellant] was subjected to the violence he described in Uganda.”
Dr Goldwyn also noted that the Appellant showed some symptoms of depression and post-traumatic stress disorder (“PTSD”), but did not meet the diagnostic criteria for either. She did, however, consider that continuing detention was exacerbating the Appellant’s symptoms.[11]On 3 May 2012, praying in aid the report of Dr Goldwyn, the Appellant issued judicial review proceedings (Claim No CO/4698/2012) in which he sought a stay of his removal from the UK. His primary ground was that removal would breach article 6 of the ECHR because it would inhibit his ability to prosecute the assault claim; but he also claimed that it would breach his secondary article 3 rights because there had been no article 3 compliant investigation into his alleged mistreatment during the attempted removal. He also said he feared a further breach of his article 3 rights on any further attempt to remove him. I shall refer to these proceedings as “the first claim”. Interim relief was granted on 4 May 2012, which restrained the Secretary of State from removing him, effectively until his private law claim had been concluded. Permission to proceed with the claim was granted on 11 June 2012. A private law claim for assault was issued on 11 October 2012. As I understand it, that claim has now been heard, and judgment is awaited.[12]By December 2012, the Appellant had been in immigration detention for nearly 30 months; and, on 23 December, his solicitors made representations to the Secretary of State seeking his release and temporary admission, on the basis that to continue to detain him would be unlawful in the light of(i) the length of his detention;(ii) the absence of any real prospect of removing him within a reasonable time, because of the uncertainty as to when the private law claim would be concluded; and(iii) his mental health, which had deteriorated.[13]The issue of his mental health was the subject of a report from a consultant psychiatrist (Dr Cornelius Katona) which, amongst other things, said that the Appellant suffered from severe depressive and trauma-related symptoms and he fulfilled the criteria for both a major depressive disorder and PTSD (paragraphs 9.13, 9.14 and 10.1). He considered that his continued detention was “an important factor aggravating [his] PTSD and major depression” (paragraph 15.1). The Appellant’s condition could only be treated in detention “to a very limited extent” (paragraph 16.1); and, if detention continued, his symptoms were likely to worsen (paragraph 17.1). Finally, Dr Katona expressly agreed with Dr Goldwyn that it was “highly likely” that the Appellant had been the subject of torture in Uganda, as he had described (paragraph 19.1). Dr Katona’s report was provided to the UKBA on 14 December 2012.[14]In their letter of 23 December 2012, the Applicant’s solicitors requested a response by 3 January 2013, as the next detention review was due to take place on 2 January 2013. At that review, the UKBA decided that the Appellant’s continued detention was warranted for the reasons previously given, notably the high risk of absconding and reoffending that he posed.[15]However, the UKBA responded to the 23 December 2012 letter on 10 January 2013 to the effect that bail would be considered by the Chief Immigration Officer on the provision of two £2,500 sureties, or alternatively electronic tagging. A release address was also sought. A request was made for confirmation by return, so that “appropriate arrangements” could be made.[16]However, by that time, the Appellant’s solicitors were in the process of preparing both(i) an application for bail in the first claim; and(ii) a second claim for judicial review challenging the lawfulness of continued detention, including an application for interim relief in the form of immediate release. Later on 10 January, the Appellant’s solicitors responded to the letter they had received that day from the UKBA, indicating that they considered that letter to be equivocal; and they proposed issuing both the application and the second claim the following day, unless they received confirmation that the Secretary of State would agree to bail in principle, subject only to a bail address being made available. Accompanying that letter was a draft application, and a letter before claim in relation to the proposed second judicial review which contended that the Appellant’s continued detention “from at least 2 January 2013” was unlawful as being contrary to the well-established principles in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 All ER 983.[17]The following day (11 January 2013), no response having been received, the Appellant issued an application for bail in the on-going first claim. The basis of the application was that, in view of the length of time he had been in detention, the uncertainty as to any possible removal date and his mental health, continued detention would be inappropriate and unlawful. The application was supported by a statement of his solicitor (Gareth Mitchell) dated 11 January 2012, which relied upon the reports of both Dr Goldwyn and Dr Katona – and, particularly, the assessment that it was highly likely that the Appellant had been the subject of the violence in Uganda that he had described (paragraph 41) – and said that the application for bail was made notwithstanding the intention to bring a claim for unlawful detention “given that this application for bail is likely to be determined much sooner than any judicial review claim” (paragraph 50). From that, it seems that, at least at that stage, the Appellant’s legal advisers thought that the bail application would be heard before any application for relief in any second judicial review.[18]The application was served on the Government Legal Service (“the GLS”) on behalf of the Secretary of State by email on 15 January. On 16 January, the application for bail was set down by the court for hearing on 6 February 2013.[19]On 17 January 2013, the UKBA responded to the letter before claim in respect of the proposed further judicial review. That letter, in some detail and with some vigour, set out why the UKBA did not consider the detention of the Appellant to be unlawful. It did not deal with the issue of immediate release or bail.[20]On 23 January 2013, again supported by a statement of Mr Mitchell dated that day, the Appellant issued a second judicial review (Claim No CO/793/2013), which sought a declaration that he had been unlawfully detained since 2 January 2013 and an interim order that he be released from detention immediately. I shall refer to these proceedings as “the second claim”.[21]In this second claim, the Appellant did not claim damages. Indeed, he consistently made clear that the only substantive relief in the claim in which he was interested was the interim relief, namely his immediate release. As Mr Hickman accepted (see paragraph 13 of his replacement skeleton argument), the basis for that interim application was essentially the same as the application for bail already made, i.e. the length of detention, the uncertainty about any date of removal and the Appellant’s mental health. However, in addition, the Appellant claimed that his continued detention was unlawful, because (amongst other things) it contravened the Secretary of State’s own policy in paragraph 55.10 of her Enforcement Instruction Guidance which provided that “where there is independent evidence that [the applicant has] been tortured”, an applicant will only be suitable for detention “in only very exceptional circumstances”. Here, in the form of the reports from Dr Goldwyn and Dr Katona, there was such evidence; and the Secretary of State had not explained why there were “very exceptional circumstances” nevertheless warranting continued detention. The Applicant requested that the court consider his application for interim relief by 28 January 2013.[22]On 24 January, the Secretary of State agreed to provide the Appellant accommodation at a specified address under section 4 of the Immigration and Asylum Act 1999.[23]The following day (25 January 2013), His Honour Judge Thornton QC sitting as a Deputy High Court Judge sensibly directed that the Appellant’s application for interim relief in the second claim be listed with his application for bail in the first claim, on 6 February 2013.[24]On 29 January, the GLS indicated that High Court bail would not be resisted, subject to the Appellant agreeing terms including residence at the section 4 accommodation address, electronic tagging and reporting conditions. It also invited the Appellant to withdraw his second claim, as it had become academic because the Appellant would no longer be detained.[25]On 30 January 2013, the parties signed a draft consent order in the first claim, by which it was agreed that bail would be granted on the terms previously identified by the GLS. Costs were reserved. That consent order was approved by Lang J the following day.[26]On 27 February 2013, by consent, the second claim was withdrawn, on the basis that costs would be dealt with on written submissions.[27]On 18 April 2013, the first claim was also withdrawn by consent, upon the Secretary of State’s undertaking not to remove the Appellant until his civil claim for assault has concluded. Costs were again to be dealt with by way of written submissions. Following receipt of those submissions, on 3 February 2014, Nicholas Padfield QC sitting as a Deputy High Court Judge ordered the Secretary of State to pay the Appellant’s costs of the first claim on a standard basis, to be assessed if not agreed. On 16 June 2015, those costs were assessed in the sum of £45,491.15. That order has not been challenged.[28]In respect of the second claim, both parties lodged written submissions, the Appellant doing so in two parts on 13 March and 8 April 2013. The Appellant’s submissions were frank about the strategy that had been adopted and object of the second claim. In paragraph 10 of the 13 March 2013 submissions, it was said:
“As made clear in the pre-action correspondence and in the grounds, the [Appellant’s] sole objective was to secure his release from detention as soon as possible. To achieve this, he adopted a twin-track approach: first, by way of an application for interim relief in these judicial review proceedings [i.e. the second claim]; and, second, by way of application for High Court bail made in [the first claim].”
Thus, it accepted (at paragraph 12), the grant of bail rendered the second claim, as a whole, academic.[29]On the basis of the written submissions, in which the Appellant sought his costs of the claim and the Secretary of State opposed such an order, on 23 January 2014, the Deputy Judge made no order as to costs. In her reasons, she said this:
“The claim was withdrawn by consent upon the parties agreeing that the claimant be granted bail on the terms of a consent order in respect of CO/4698/2012 [i.e. the first claim]. The claimant submits that he is the successful party under the principles laid down in [R (M) v Croydon Borough Council [2012] EWCA Civ 595; [2012] 1 WLR 2607 (“M”)] because he obtained the interim relief namely bail that he was seeking. However these proceedings were brought in addition to the proceedings under CO/4698/2012 at a time when a hearing date for those other proceedings had already been fixed. The claimant in his submissions states that his sole objective was to secure his release from detention and to achieve this he adopted a twin track approach. However it is clear from the chronology set out in the defendant’s submissions on costs that the current claim was issued on 23 January 2013 after the bail application made in the other proceedings on 16 January 2013 and after the application was set down for hearing (17 January 2013). Bail was subsequently agreed and a consent order in the other proceedings signed. Whilst 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. It is not apparent why it was necessary to adopt a twin track approach given the imminent hearing of the other application and it seems to me the defendant should not have to pay the costs of what appears to be unnecessary duplication. (The costs of the other application are to be determined separately and the position in respect of such costs is likely to be different.) 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 is it “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 [M] the appropriate order in relation to this application is no order for costs.”
[30]Following a refusal by Aikens LJ on the papers, at a renewal hearing on 18 February 2016, Longmore LJ granted permission to appeal. Thus, the appeal against the Deputy Judge’s costs order is before us.[31]In granting permission, given that the Appellant had already been awarded his costs of the first claim, Longmore LJ said he was “a bit concerned that [the costs application in the second claim was] a storm in a teacup” (see [7]); and so ordered the Appellant to lodge a schedule of costs within 28 days. The schedule prepared was in the sum of just over £30,000.

The Law

[32]The relevant law relating to costs is uncontroversial, and can be shortly stated.[33]Subject of course to the overriding objective in CPR rule 1.1 that cases are dealt with justly and proportionately, under CPR rule 44.2(1) and (4), the court has a discretion as to any costs order it makes, having regard to all the circumstances including the conduct of the respective parties. However, rule 44.2(2) provides that “the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party”. That rule applies to a public law claim in the Administrative Court as much as to a claim made in any other part of the justice system.[34]The application of that principle to public law cases which settle before determination was considered by this court in M. Giving the substantive judgment of the court, at [60], Lord Neuberger of Abbotsbury MR (as he then was) drew a distinction between three types of case, namely(i) a case where the claimant has been wholly successful, whether at a contested hearing or pursuant to a settlement;(ii) a case where he has succeeded in part, following a contested hearing or settlement; and(iii) a case in which a settlement does not reflect the claimant’s claims. Whilst he stressed that every case would depend on its facts, he said that, in cases falling within (i), the claimant should recover his costs unless there was some good reason to the contrary; and, in cases falling within (iii), the default position should be no order for costs, although if it is “tolerably clear” that the claimant would have won if the matter had been contested, then a costs order in his favour might be appropriate.[35]In a costs appeal, it is trite law that, before an appeal court can interfere, it must be shown that the judge below erred in principle or approach; or has left out of account or taken into account some feature that he should or should not have considered; or has strayed outside the wide boundaries of discretion granted to him or her by failing to balance the various factors fairly in the scale (see, e.g., R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415 at [13] per Lloyd Jones LJ, and the other authorities there referred to).

The Grounds

[36]The grounds of appeal are essentially simple. Mr Hickman submitted that the Appellant’s sole object in making his bail application in the first claim and issuing the second claim (including the application for interim relief) was to obtain his prompt release from detention. He achieved that objective, by obtaining the bail to which the Secretary of State eventually agreed. Applying M, the Appellant was therefore “wholly successful” in the second claim; and there were no exceptional circumstances for departing from the usual rule that a successful claimant should be entitled to his costs.[37]Mr Hickman challenged the Deputy Judge’s conclusion that to adopt such a “twin track approach” was such a circumstance because it was unnecessarily duplicative. He submitted that the interim application in the second claim was materially different from the application for bail in the first claim; and the Deputy Judge erred in failing to have regard to the conduct of the Secretary of State in relation to the Appellant’s release, as required by CPR rule 44.2(4)(a), which also contributed to the rationale of proceeding with the second claim.

Discussion

[38]Mr Hickman submitted, first, that the Appellant did “wholly succeed” in the second claim, in the sense that that term was used in M. The relief that the Appellant sought – and the only relief he was interested in – was his own release; and he was successful in obtaining that, through the consent order by which he obtained bail. That focus is reflected in the fact that he sought no damages; and, once he had obtained his release, he did not pursue the second claim which was withdrawn as I have described. In paragraph 7 of the Appellant’s costs submission to the Deputy Judge, the Appellant’s release is identified as the only relief that had been sought.[39]For the purposes of this appeal, in favour of the Appellant, I am prepared to accept that submission, and proceed on the basis that the Appellant’s prompt release was the only purpose of the second claim.[40]The Deputy Judge also, in substance, proceeded on that assumption. However, she considered an alternative submission, which Mr Kellar for the Secretary of State also made before us and which I should briefly mention. In respect of whether the Appellant was “wholly successful”, Mr Kellar pointed out that, in the second claim, as well as an order for his release, the claim form sought a declaration that the Appellant’s detention since 2 January 2013 had been unlawful; and the claim for such a declaration was reiterated in paragraph 62 of the single document which provided both the grounds of challenge and the application for interim relief. On the face of the claim, the Appellant therefore sought declaratory relief in respect of the alleged unlawfulness of his detention. The claim that continued detention was unlawful was the core claim; and, in respect of that, the Appellant was not successful.[41]In my view, the Deputy Judge dealt with that issue entirely properly. As I have described, the issue of the unlawfulness of the Appellant’s detention was strongly contested in correspondence before the second claim was issued; and the Appellant had an extremely unattractive immigration history, involving both absconding and offending, to which the Deputy Judge expressly referred in making her finding. The Deputy Judge concluded – as, on the material before her, she was clearly entitled to do – that it was not “tolerably clear” that the Appellant would have succeeded in showing that his continued detention was unlawful. Consequently, even if she had not found that the success achieved in the second claim was as a result of effort that unnecessarily duplicated that expended on the bail application in the first claim, it cannot be assumed that the Deputy Judge would have made a full (or, indeed, any) costs order in the Appellant’s favour.[42]But, returning to the assumed basis of the costs application (i.e. that the Appellant wholly succeeded in achieving that which he sought in the second claim), under the principles set out in M, Mr Hickman submitted that he was entitled to a costs order, unless there was, extraordinarily, good reason for depriving him of his costs. He submitted that the Deputy Judge was wrong to conclude that the application for interim relief in the second claim was “unnecessary duplication”, because, between it and the application for bail in the first claim, there were three distinguishing features.[43]First, Mr Hickman submitted that it was reasonable to issue the second claim because there is uncertainty as to whether the High Court has jurisdiction to grant bail in a claim where the applicant is not claiming release, or where, if he were successful, a right to release would automatically follow. The Appellant here did not claim release in the first claim; and, even if he had shown in that claim that his removal at that stage would be unlawful, a right to release would not automatically have followed. The second claim was therefore issued “to ensure that no issue could arise as to the jurisdiction of the court to release the [Appellant]” (paragraph 9 of Mr Hickman’s replacement skeleton argument).[44]During the course of debate before us, the “jurisdiction issue” was nuanced by Mr Hickman, into a ground of appeal that the Deputy Judge failed to take into account the Appellant’s reasonable concern that the bail application in the first claim might fail because the court might refuse jurisdiction to hear it; or, alternatively, accepting jurisdiction, the High Court might refuse to exercise its discretion in favour of releasing the Appellant absent a claim for unlawful detention.[45]In support of that submission, Mr Hickman relied upon the case of In Re Corey [2013] UKSC 76; [2013] 2 WLR 1612, in which the Supreme Court held that the High Court in Northern Ireland did not have inherent jurisdiction to release a life prisoner on bail where, unlawfully, a review of that prisoner’s detention had not been carried out; because the legality of the prisoner’s detention was not in issue and he had not sought release as part of the relief claimed.[46]In response, Mr Kellar put forward a powerful submission that the underlying premise of the Appellant’s argument on this issue was ill-founded, because, he contended, it is well-established that the High Court does have, and regularly exercises, jurisdiction to grant bail to an immigration detainee even where that individual does not make an express claim for unlawful detention and would not become automatically entitled to release from detention if his (perhaps highly restricted) immigration claim is successful. Corey is distinguishable, because specific provisions in the statutory scheme being considered in that case overrode or ousted the inherent jurisdiction of the court which applies in this case. Given the state of the law, he submitted, the Appellant could not have had any reasonable concern.[47]However, in my view, it is unnecessary to determine the hard-edged jurisdictional issue, because it is now too late for the Appellant to raise the argument that he issued the second claim because he and his legal representatives were reasonably concerned that the High Court may refuse jurisdiction to grant bail in the first claim, or at least be less willing to grant such bail as opposed to interim relief for release in the second claim.[48]This court has frequently stressed the differences between a first instance hearing (at which a party has every opportunity to put forward his case, both in terms of evidence and submissions, upon which there has been a decision) and an appeal; and the importance of deploying all evidence and arguments at first instance (see, e.g., Jones v MBNA International Bank [2000] EWCA Civ 514 at [52] per May LJ). In respect of the jurisdiction ground – however it is now put – it was not raised until the Appellant’s skeleton argument for this appeal. It was not raised, as it is now put, even in the grounds of appeal or before Longmore LJ. It is not suggested that the Deputy Judge did not have jurisdiction to do that which she did – or, indeed, that Lang J did not have jurisdiction to make the order she made on 31 January 2013 (see paragraph 25 above) – only that the Appellant’s concern about jurisdiction etc led him reasonably to issue the second claim. No explanation for the failure to raise the point earlier has been forthcoming. In any event, as it was not a point raised by the Appellant before the Deputy Judge – and, certainly, it was not such an obvious point that the Deputy Judge erred in not taking it into account on her own initiative – it is not something upon which he can now rely as a material matter which the Deputy Judge failed to take into account.[49]Furthermore, even if the submission had been made to the Deputy Judge, it would have been bound to fail. It is not simply a question of law. It would have required evidence as to what was in the mind of the Appellant and his legal advisers at the relevant time; and, as Mr Hickman conceded, there was no evidence before the Deputy Judge upon which she could have concluded that the second claim was reasonably issued because of concerns about the jurisdiction of the court to grant bail in the first claim. The fact that a new point of appeal involves different evidence from that which was adduced at the first instance hearing will usually be fatal to an application to raise it on appeal. However, in this case the position of the Appellant is even more acute, because the evidential void to which I have referred has not been addressed before this court, with the consequence that, even if it were not now simply too late, the ground would be bound to fail on the material before us.[50]In all the circumstances, for those reasons, I do not consider that it would be in the interests of justice to allow the Appellant to rely upon this ground of appeal now.[51]Turning to the second suggested distinction that he attempted to draw, Mr Hickman submitted that a claim for bail and a claim for an interim order for release in an unlawful detention case are different in nature and scope; and, on the same material, capable of rendering different results. In any event, here, the material was not the same, as the claim for unlawful detention included the allegation, absent from the first claim, that the detention was unlawful because (amongst other things) it would be in breach of the Secretary of State’s own policy concerning those in respect of whom there is independent evidence of torture in his home country (see paragraph 21 above).[52]It is now well-established law that bail is not a determination of the lawfulness of detention; and the fact that it cannot be proved that continued detention would be unlawful is not fatal to a bail application. However, that does not mean that an allegation that detention is unlawful is not relevant to the balancing exercise required on an application for bail, whether or not a discrete unlawful detention claim is made. As I understand it, Mr Hickman accepted that to be the case. Nevertheless, he submitted that, where a discrete unlawful detention claim is made (e.g. on the ground that continued detention would be unlawful as being in breach of the Secretary of State’s own policy), then the court may give that factor more weight in an application for interim relief in an unlawful detention claim than in an application for bail. However, although I accept that, on the facts of a particular case, it may be open to the High Court to give that factor less (or even no) weight in considering an application for bail in a claim in which the lawfulness of the continuing detention was not directly in issue, there was in this case, in practice, no sensible reason for it to do so; and the advantage of issuing the second claim that theoretically arose was, in practice, vanishingly small.[53]Furthermore, by 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.[54]Of course, with the benefit of hindsight, we know that the costs of the second claim – claimed in the sum of over £30,000 – were in fact wasted, in the sense that the bail application in the first claim was successful and the second claim therefore served no purpose. But, in my view, the Deputy Judge was entitled to exercise sensible foresight and conclude that, given the duplication between the two applications, it was not reasonable for the Appellant to have issued and pursued the second claim when he did. It was issued on 23 January 2013, at a time when the bail application had already been set down for hearing on 6 February 2013, i.e. two weeks hence. If the Appellant had waited for those two weeks for the bail application to run its course, he would have saved substantial costs. I appreciate that we are dealing here with the liberty of the subject; but, given that the potential delay was only two weeks, the advantage to the Appellant of issuing the second claim was at most extremely slight, and the costs of obtaining that potential benefit, issuing the second claim as and when the Appellant did appears to me to have been grossly disproportionate and unreasonable. Certainly, the Deputy Judge was entitled to conclude that that was the case.[55]Third, Mr Hickman submitted that, in any event, the application in the second claim was necessary because, at the time of issue, the Secretary of State had conspicuously refused to confirm, in suitably unequivocal terms, that the Appellant would be released. She could easily have given such confirmation in response to the letter before the second claim; but her response, in fact, contained no such assurance. In those circumstances, it was appropriate and reasonable for the Appellant to have issued the second claim. In considering the costs application, the Deputy Judge failed to take into account this conduct of the Secretary of State. Had she done so, she would (or, at least, might) have made a positive costs order in favour of the Appellant.[56]I am unpersuaded that there is any independent force in this submission which, in my view, adds nothing to the other grounds. The extent to which the Secretary of State had made a reasonable offer of compromise is, as I understand it, a matter of dispute between the parties; but, in my respectful view, it was not relevant to the costs issue in the second claim and is not relevant to this appeal. The Appellant has obtained a costs order in the first claim, for the costs of “the entire judicial review proceedings” (see Order of 3 February 2014 referred to in paragraph 27 above). Those costs have been assessed and, presumably, paid. The issue here is whether the Deputy Judge was entitled to conclude that, insofar as it sought the Appellant’s immediate release, the second claim was essentially duplicative of the application for bail in the first claim. The pre-claim correspondence, and conduct, is immaterial to that issue.

Conclusion

[57]In my view, in the circumstances of this case and for the reasons I have given, 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.[58]Consequently, in my judgment, the Deputy Judge did not err in her approach. I would dismiss this appeal.[59]I agree.