Inflexibility in Summary Assessment: R (Isah) v Secretary of State for the Home Department [2023] EWCA Civ 268 - Sebastian Bates, Temple Garden Chambers

15/04/23. On this appeal, the Court of Appeal addressed ‘whether a summary assessment must be undertaken by the judge making the order for summary assessment’: see [1].

Summary

As Asplin LJ explained at [2]–[10], the appeal was brought by Mr Isah against a ruling on costs by Linden J. He had ordered that, if their quantum could not be agreed by Mr Isah and the Secretary of State for the Home Departments, then the costs that he had awarded would be summarily assessed by a Master.

Asplin LJ’s starting point was the definition of a summary assessment in CPR 44.1(1), in which this is said to be ‘the procedure whereby costs are assessed by the judge who has heard the case or application’: see [11] and [21].

As Asplin LJ recorded at [20] and [29]–[34], in the face of this definition it was pointed out on the Secretary of State’s behalf that CPR 44.6(1)provides that a court ‘may either (a) make a summary assessment of the costs; or (b) order detailed assessment of the costs by a costs officer’. Reference was made to [9.7] of PD 44, which indicates that ‘[i]f a summary assessment of costs is appropriate but the court awarding costs is unable to do so on the day, the court may give directions as to a further hearing before the same judge’.

The overall argument was that the word ‘may’—coupled with ‘the effect of the overriding objective upon the [Civil Procedure] Rules and CPR r 3.1(2)(m)’—meant that courts have...

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Secretary of State for the Home Department Fails to Strike Out Negligence Claim - Grace Corby, Temple Garden Chambers

15/03/23. In Aruchanga v Secretary of State for the Home Department [2023] EWHC 282 (KB) the Claimant sought damages for breach of a common law duty of care by the Defendant for failing to supply him with confirmation of his refugee status. As a result, he suffered loss of benefits, which caused him personal injury in the form of exacerbating pre-existing post-traumatic stress disorder (“PTSD”). The Claimant also brought other claims for breach of human rights and under the Data Protection Act.

The Defendant unsuccessfully sought to have the Claim struck out.

Background

The Claimant arrived in the United Kington from Rwanda in May 1995. He was granted refugee status in December 1997. In 1999, the Claimant’s house was burgled and (amongst other items) his Home Office documentation which confirmed his refugee status was stolen.

The Claimant asserted that various attempts had been made to confirm his status, between 2000 and July 2001 by writing to the defendant seeking a replacement status document. However, he had not received a response.

The Claimant alleged a duty framed as follows in the Particulars of Claim:

“"It is contended that the defendant owed a common law duty of care to the claimant, …to provide him with a replacement refugee status/leave to remain document, or to otherwise confirm or acknowledge his status (whether to himself, his representatives or to other relevant third parties).."

The Defendant sought to strike out the Claim.

Decision

The matter came before Mrs Justice Lambert.

The Claimant argued that the Judge should be slow to strike out the claim as it was well established that the circumstances in which public authorities may owe a common law duty of care is an evolving area of law

Both counsel accepted that this was a case in which it was being alleged that the Defendant failed to confer a benefit, rather than a case in which, by reason of some positive act by the Defendant, the Claimant suffered harm. As such, both accept that (adopting the analysis in Poole Borough Council v GN and Another [2019] UKSC 25 ) one of the factors to which the Judge should have regard is whether the defendant has, by granting the claimant refugee status, voluntarily assumed responsibility for confirming the claimant's refugee status if an inquiry is made.

The Judge applied the three-stage test in Caparo Industries Ltd v Dickman [1990] 2 AC 605. She said:

21. In this context I take into account that the defendant is the only body able to grant the claimant (or anyone) refugee status. Further, on the basis of the documents which I have seen, it appears that the only record available to, and accessible by, the claimant concerning his refugee status is the statement contained in the letter which he is sent by the defendant: there is no record available to him elsewhere (such as by an endorsement to his passport) and the letter stating that refugee status had been granted recorded that the letter constitutes the claimant's "authority to remain in the United Kingdom." Given these facts, it seems to me to be at least arguable that the defendant, having granted refugee status, assumes responsibility for confirming the same given its importance to the claimant as a means of proving that he had lawful leave to remain in the UK, and the reasonable reliance placed upon the document by the claimant.

22. Approaching the question in a slightly different way and adopting the three-stage approach set out in Caparo (as qualified by Poole and the cases referred to in Poole in the context of tortious claims against public bodies) I find that it is arguable that the claimant may suffer damage which is reasonably foreseeable: it is, arguably, reasonably foreseeable that the claimant's immigration status may be at risk in the absence of confirmation, given the burden upon him to prove that he has lawful leave to remain. He may be subject to deportation or to detention pending deportation. I find it arguable that there was a sufficient relationship of proximity between the defendant and the claimant, given that only the defendant is able to confer refugee status and the document remains, apparently, the only written proof of status.

The more difficult question was the third-stage of whether it was ‘fair, just and reasonable’ to impose a duty of care on the Defendant. The Judge found that such a duty was “arguable, albeit only just, particularly given that it is not argued (so far) by the defendant before me that there is any risk of a welter of claims being brought.”

Therefore, the claim was not struck out.

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Non-party costs orders against solicitors where a CFA is in place - Anisa Kassamali, Temple Garden Chambers

14/03/23. PME v The Scout Association [2023] EWHC 158 (Senior Courts Costs Office) considered an application for a non-party costs order (“NCPO”) against a claimant’s solicitors, where the claimant was protected by QOCS.

Background

The claimant’s claim for personal injury was settled by way of the defendant’s Part 36 offer of £29,500 on 22 August 2017.

The claimant served a schedule of costs in August 2017. The defendant offered to settle the claim for costs at £22,500 in September 2017 on the basis of that schedule, but the claimant rejected that offer. Various proceedings in relation to costs followed, which resulted in two costs orders being made against the claimant.

It was not disputed by the parties that the claimant was protected by QOCS. It followed that the defendant had no means of recovering the costs which the claimant was ordered to pay, without the permission of the Court.

The Court was asked to consider the defendant’s application for a NCPO against the claimant’s solicitor. The defendant’s position was that it had “had no intention of attempting enforcement against the [claimant] and instead [sought] an order that [the claimant’s solicitor’s]pay all of those costs” [26].

Judgment

Costs Judge Leonard refused the defendant’s application. He substantively accepted the claimant’s submissions (see, in particular, [129]-[148]).

The Judge noted the relevance of the claimant’s retainer agreement with his solicitors. There was a capped CFA agreement in place which provided that the claimant should, in the event of success, pay a success fee of 100% (irrecoverable from the defendant directly). It also provided that any shortfall between the sums payable by the claimant to his solicitors under the CFA and the costs and disbursements recovered from the defendant were to be capped at 15% of the damages received by the claimant. Accordingly, the only party with a “tangible financial interest” in the outcome of the costs proceedings was the claimant’s solicitors [35].

Against this background, the defendant submitted that the solicitors were the ‘real party’ in the costs proceedings (see [52]-[62], in particular [62]). It was the solicitors who had funded the costs proceedings, paying disbursements as well as deploying the value of their fee earners’ time. They controlled the proceedings and stood to benefit from them. It was submitted that they were “in every respect, the ‘real party’, to the complete exclusion of the Claimant” [62].

The defendant also submitted that a NCPO against the claimant’s solicitors would not imperil the policy of QOCS (see [64]-[85]). The following arguments are of particular interest to practitioners:

· [76]: “The [claimant] remains fully protected [under the QOCS regime]. It is no part of the policy behind QOCS that claimants’ solicitors should be allowed a ‘one-way bet’ when it comes to assessment of their costs, so that challenges and appeals can be pursued which, if successful, would result in an increase in the recoverable costs and payment of their costs by the [defendant], but in the event of failure cost them nothing except their own outlay”.

· [78]: “The [claimant’s solicitors] do not require special protection. They are not in an asymmetric relationship with the [defendant] and its solicitors. They are perfectly capable of judging for themselves what is a reasonable level of costs recovery and weighing up the risks and benefits of rejecting an offer or challenging the result on detailed assessment.”

However, the Judge was ultimately aligned with the claimant’s submissions.

The claimant responded that the defendant was seeking to “circumvent what it perceives to be the unsatisfactory operation of the QOCS rules as drafted…” [87]. The “gateway issue” for a NPCOwas whether a solicitor was a real party to the litigation. This relied on an assessment of whether the claimant’s solicitors were acting outside the role of a solicitor. The claimant’s solicitors could not be said to be acting outside of this role. They were doing no more than was permitted by the relevant funding legislation.

The claimant’s submissions on CFAs, including in relation to access to justice, are of relevance to practitioners operating in this arena. These submissions were largely accepted by the Judge:

“97. ‘CFA lite’ arrangements are a well-established and permissible form of funding and a permissible inroad into the indemnity principle. So too are CFAs, like that between the [claimant] and [claimant’s solicitors], where the client has a residual liability, but such liability is capped.

98. In order for such a permissible funding regime to work, it is fundamental that in successful claims the between the parties costs may be recovered from the opponent. If they cannot be, the very essence of the "no win-no fee" funding regime, incorporating the expectation that in the event of success the majority of the fee for winning will be paid by the opponent, would be disrupted. "CFA lites" would simply be unworkable.

99. Similarly, capped CFAs would cease to function effectively since the only reason such caps can be offered is in the expectation that all or the majority of the costs in a successful case will be recovered between the parties.

…

102. It is well known that arrangements such as CFA lites represent a form of legal fiction, permitted and widely used in order to enhance access to justice. It is a (and probably the) core part of that legal fiction that the costs are recovered in the client's name in permissible circumvention of the indemnity principle despite the client's lack of a conventional liability for such costs.

…

104. With capped CFAs, the fiction is similar but less stark. The client does have a liability over and above the recovered between the parties costs, but that liability is limited and depending on the facts the relevant cap may be reached, as it has here, so that greater or lesser recovery of base costs between the parties will again make no immediate difference to the [claimant’s] liability.

105. There is no greater warrant in such a case for treating the solicitor as the "real party" than in a CFA lite case. In both cases, the solicitor is not acting outside the role of the solicitor. The solicitor is rather doing that which is at the very heart of such funding arrangements if they are to work at all, which is seeking to recover the between the parties costs.”

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