“An application under paragraph (1) or (4A)(a) must— (a) identify the decision of the Upper Tribunal to which it relates; (b) identify the alleged error or errors of law in the decision; and (c) state the result the party making the application is seeking.” [The amended provisions of rule 44(4) are reproduced in [24], infra] (a) identify the decision of the Upper Tribunal to which it relates; (b) identify the alleged error or errors of law in the decision; and (11). Rule 45(1) confers on the Upper Tribunal a discretionary power to review the substantive decision under challenge in the limited circumstances specified in (a) and (b), upon receipt of an application for permission to appeal. Notably, the exercise of this power does not require a specific application or request on behalf of the would be appellant. Rather, this is very much an “own initiative” power. The review must be taken in accordance with rule 46. By virtue of rule 45(2), the Upper Tribunal has three options upon receipt of an application for permission to appeal: (a) To decide not to review the substantive decision. (b) To review the substantive decision and, effectively, affirm same, proceeding to determine the application for permission to appeal. (c) To review the substantive decision and take some “action in relation to the decision or part of it”
“The Tribunal may treat an application for a decision to be corrected, set aside or reviewed, or for permission to appeal against a decision, as an application for any one of those things.” (12). Receipt of an application for permission to appeal also triggers the Upper Tribunal’s general powers under rule 5. In the present litigation context the most important of these is the power to extend time enshrined in rule 5(3). The general power to give directions under rule 5(2) and rule 6(1) is also engaged. Furthermore, certain of the provisions of rule 7 are applicable: “(1) An irregularity resulting from a failure to comply with any requirement in these Rules, a practice direction or a direction, does not of itself render void the proceedings or any step taken in the proceedings. (2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction, the Upper Tribunal may take such action as it considers just, which may include — (a) waiving the requirement; (b) requiring the failure to be remedied; (c) exercising its power under rule 8 (striking out a party's case); or (d) except in a mental health case, an asylum case or an immigration case, restricting a party's participation in the proceedings.”
“(1) The overriding objective of these Rules is to enable the Upper Tribunal to deal with cases fairly and justly. (2) Dealing with a case fairly and justly includes— (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Upper Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues. (3) The Upper Tribunal must seek to give effect to the overriding objective when it— (a) exercises any power under these Rules; or (b) interprets any rule or practice direction. (4) Parties must— (a) help the Upper Tribunal to further the overriding objective; and (b) co-operate with the Upper Tribunal generally. (a) waiving the requirement; (b) requiring the failure to be remedied; (c) exercising its power under rule 8 (striking out a party's case); or (d) except in a mental health case, an asylum case or an immigration case, restricting a party's participation in the proceedings.” (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties; (b) avoiding unnecessary formality and seeking flexibility in the proceedings; (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings; (d) using any special expertise of the Upper Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues. (a) exercises any power under these Rules; or (b) interprets any rule or practice direction. (a) help the Upper Tribunal to further the overriding objective; and (b) co-operate with the Upper Tribunal generally. Appealing a costs order (13). The first question to be addressed is whether an appeal to the Court of Appeal lies against a costs order of the Upper Tribunal. The principle that an appeal lies to a higher court or tribunal only if provided by statute is one of some antiquity: see for example Furtado v City of London Brewery Company[1914] KB 709 at 712. Thus this question is one of pure statutory construction. (14). The relevant provisions of the 2007 Act are set out in [9] above. The “right to appeal” from the Upper Tribunal to the Court of Appeal is, as section 13 considered as a whole makes clear, a right to apply for permission to appeal. Such application must be made first to the Upper Tribunal, per section 13(5). An appeal lies “on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision” (our emphasis): per section 13(1). “Decision” is nowhere defined. However, there is an elaborate definition of “excluded decision”, in section 13(8). This definition does not include any of the following: a substantive decision in judicial review proceedings, an interlocutory decision in judicial review proceedings or a costs decision in judicial review proceedings. Indeed neither the expression “judicial review proceedings” nor any equivalent thereof features in section 13. This theme is reinforced by the consideration that section 13 belongs to a composite group of provisions, beginning with section 11, which provides for an appeal to the Upper Tribunal from the First-tier Tribunal (“FtT”), followed by the Upper Tribunal’s powers in the determination of such appeals in section 12, which is plainly concerned with appeals from the FtT. The final member of this discrete unit is section 14, which prescribes the powers exercisable by the Court of Appeal in the event of finding that the Upper Tribunal’s decision involved the making of an error on a point of law. (15). The statutory appeals/judicial review dichotomy in the statute is reinforced by the immediately succeeding group of provisions, namely sections 15 – 19, which are arranged under the rubric “Judicial Review” and relate exclusively to judicial review proceedings. Strikingly, as originally enacted, there is nothing within this discrete group making provision for appeal from the Upper Tribunal to the Court of Appeal in such proceedings. (16). Based on this analysis of the statutory provisions we conclude that a costs decision of the Upper Tribunal may be the subject of an application for permission to appeal to the Court of Appeal. This is illustrated by R (TH (Iran)) v East Sussex County Court[2013] EWCA Civ 1027 , which was an appeal to the Court of Appeal against the costs order of this Chamber in an age assessment judicial review case.The determination of such applications is governed by s13(6) of TCEA 2007 and the 2008 Order (supra). Thus the criterion to be applied is whether the appeal raises an important point of principle or practice or there is some other compelling reason warranting the grant of permission. In practice, it is to be expected that cases satisfying this criterion will be very small in number. The basic reason for this is that costs decisions involve a substantial measure of judicial discretion. Furthermore, they entail the application of well established principles to the individual litigation matrix. (17). For present purposes, it suffices to draw attention to the general principles formulated by the Court of Appeal in M v London Borough of Croydon[2012] EWCA Civ 595 , which relate to the payment of costs in circumstances where judicial review proceedings are settled following the grant of permission and prior to the substantive hearing. The Court promulgated the general rule that the successful party should recover its costs from the unsuccessful party. Simultaneously, it recognised that where a claimant succeeds on some issues and not others, the order may reflect this. Importantly, this was a departure from the Court’s earlier decision in R (Bahta) v Secretary of State for the Home Department[2011] EWCA Civ 895 that any degree of success prima facie entitled the claimant to full costs. Indeed, the Court went further: even where a claimant has been wholly successful, there may be reasons for not ordering the recovery of all costs. Notably, at the conclusion of the guidance section of the judgment, Lord Neuberger MR said the following, at [66]: “Having given such general guidance on costs in relation to Administrative Court cases which settle on all issues save costs, it is right to emphasise that, as in most cases involving judicial guidance on costs, each case turns on its own facts. A particular case may have an unusual feature which would, or at least could, justify departing from what would otherwise be the appropriate costs order.”
“…………. an appellate court should normally be very slow indeed to interfere with any decision on costs.”
“The form of notice approved for the purpose of … UT Rule 21 (Application to the Upper Tribunal for permission to appeal) ….. is the appropriate form as displayed on the Tribunal’s website at the time when the notice is given, or that form with any variations that circumstances may require.”
“It is equally well established …………… that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, ie the day of that month that bears the same number as the day of the earlier month on which the notice was given.”
“Because the number of days in five months of the year is less than in the seven others, the inevitable consequence of the corresponding date rule is that one month’s notice given in a 30 day month is one day shorter than one month’s notice given in a 31 day month and is three days shorter if it is given in February.”
“[6] It is axiomatic that every application for permission to appeal to the Upper Tribunal should identify, clearly and with all necessary particulars, the error/s of law for which the moving party contends. This must be effected in terms which are recognisable and comprehensible. A properly compiled application for permission to appeal will convey at once to the Judge concerned the error/s of law said to have been committed. It should not be necessary for the permission Judge to hunt and mine in order to understand the basis and thrust of the application.”
“[9] Finally, representatives should be aware that grounds of appeal presented in formulaic terms, particularly when they reappear with frequency in a multiplicity of cases over time, are likely to be received with circumspection. … ‘Boiler plating’ will be quickly recognised by permission Judges. Ditto make weights and embellishments.” ‘Boiler plating’ will be quickly recognised by permission Judges. Ditto make weights and embellishments.” (37). An application for permission to appeal assessed as belonging to the middle and upper levels of the notional default spectrum as regards requirement (b) is unlikely to secure the forgiving exercise of either of the powers enshrined in rule 7(2)(a) and (b) or any comparable or kindred relaxation. Moreover, self evidently, permission applications which are largely incoherent or unintelligible will, in the generality of cases, attract the sanction of being struck out. On the other hand, where the non-compliance with requirement (b) is assessed as belonging towards the lower end of the notional spectrum, some latitude may be appropriate. Furthermore, as observed in Nixon at [7], some adjustment may be appropriate in the case of an unrepresented party, taking into account UTIAC Guidance Note Number 1 of 2011, paragraph 10, albeit this does not apply to applications for permission to appeal to the Court of Appeal in judicial review proceedings. (38). In all cases where there is non-compliance of any species with rule 44(7), thereby triggering the possible exercise of the strike out power in rule 8(3), Judges should be mindful of the guidance contained in R (SN) v Secretary of State for the Home Department (striking out – principles) IJR[2015] UKUT 227 (IAC) : (i) In considering whether to exercise its discretionary strike out power under rule 8, the main factors which the Upper Tribunal will weigh are the interests of the administration of justice; whether there has been a prompt application for relief; whether the failure was intentional; whether there is a good explanation for the failure; the number and importance of multiple failures; whether the failure was caused by the party or his legal representative; whether the trial date will be jeopardised by the grant of relief; the effect on every party of the relevant failure; and the effect on every party of granting relief. (39). The Tribunal will apply the following principles: public authorities and private litigants are to be treated alike; excessive work burdens will rarely excuse a defaulting solicitor; and the mere factor of a party being unrepresented does not constitute good reason. (40). The Tribunal will be mindful of the draconian nature of a strike out order and will take into account the availability of any other appropriate and adequate sanction such as a wasted costs order under rule 10(3). Repeated defaults will almost invariably be considered more serious than a single act of non-compliance. In every case the Tribunal will consider the question of whether its process is being misused. These principles require an important adjustment in rule 44(7) contexts, since the litigant concerned has already had a decision from the Upper Tribunal. Thus the litigant’s “case” does not fall to be struck out. Rather, the target of a strike out order consequential upon a failure to comply with rule 44(7) is the application for permission to appeal to the Court of Appeal. Fee payable? (41). The payment of fees in judicial review proceedings in the Upper Tribunal is governed by theUpper Tribunal (Immigration and Asylum Chamber) (Judicial Review) (England and Wales) Fees Order 2011 (“the Fees Order”). This applies to “immigration judicial review proceedings” which, by Article 1(2), cross refer to the formal Direction of the Lord Chief Justice, paragraph 5 whereof includes the language “and any proceedings relating thereto” viz relating to an “immigration matter”
“The Lord Chancellor must take such steps as are reasonably practicable to bring information about fees under subsection (1) to the attention of any person likely to have to pay them.”
“Number and Description of Fee Amount of Fee On an application by consent or without notice where no other fee is specified.£ 45.00 ”
“We confirm that we seek permission to appeal to the Court of Appeal against the decision of Upper Tribunal Judge [ ] on the issue of costs. We have spoken to the Tribunal who have checked and confirmed that the case is closed as the issue in dispute is purely a costs issue and so the matter is closed in any event.”
“With respect, we seek permission out of time to appeal the decision.”
“… The application for permission to appeal was made out of time and … there has been wholesale non-compliance by/on behalf of the Applicant with the requirements of rule 44 and directions made by the Upper Tribunal on01 July 2015 …..”