CAN YOU GET AN ORDER FOR QOCS TO APPLY ON AN APPEAL? CPR 59.2A CONSIDERED BY THE COURT OF APPEAL
In JE -v- Secretary of State for the Home Department  EWCA Civ 192 the Court of Appeal considered whether a QUOCs type order could be made in the Court of Appeal. The Court also emphasised the importance of prompt applications for orders under CPR 59.2A.
The applicant was appealing against an order of the Immigration and Asylum Upper Tribunal. The appellant made an application in relation to costs. The application was made on the 18th February when the appeal was due to be heard on the 25th February. The order sought was that:
“a. That the Appellant’s reasonable incurred disbursements (Court Fees) be paid by the Respondent in any event;
b. That the Respondent be prevented from recovery of costs, save for misconduct, against the Appellant in any event; and
c. That if the Appellant is successful in her appeal in full or part the usual costs rules apply.”
Orders to limit the recoverable costs of an appeal
(1) In any proceedings in which costs recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies.
(2) In making such an order the court will have regard to –
(a) the means of both parties;
(b) all the circumstances of the case; and
(c) the need to facilitate access to justice.
(3) If the appeal raises an issue of principle or practice upon which substantial sums may turn, it may not be appropriate to make an order under paragraph (1).
(4) An application for such an order must be made as soon as practicable and will be determined without a hearing unless the court orders otherwise.”
THE COURT OF APPEAL’S VIEW: 59.2A CANNOT BE USED TO MAKE A QOCS TYPE ORDER
- Mr Tear for the appellant submits that this rule empowers the court to make a one-way costs shifting order of the kind set out in his application notice. He places particular reliance on the last seven words of rule 52.9A (1).
- In my view this application, although attractively presented, is based upon a misconception which needs to be exposed before any similar applications are made to this court.
- Rule 52.9A is part of a package of rules which were introduced on 1st April 2013 in order to implement recommendations made in the Review of the Civil Litigation Costs Final Report (January 2010). The specific mischief against which that rule is directed is set out on pages 340-341 of that report.
- Rule 52.9A (1) refers to “the recoverable costs of an appeal”. That phrase means the costs recoverable by the winning party, whoever the winner may turn out to be. The rule deals with appeals coming up from a “no costs” or a “low costs” jurisdiction. It enables the appeal court to put in place a similar regime to that which applied in the court or tribunal below. The rule does not contemplate an order in favour of just one party, win or lose.
- Three further considerations support the interpretation set out in the previous paragraph. First, the opening lines of rule 52.9A (1) set the context. The rule is specifically concerned with appeals from jurisdictions in which all parties are subject to the same restrictions upon recoverable costs. Secondly, as Laws LJ pointed out in argument this morning, the three considerations set out in paragraph (2) of the rule are relevant to considering whether or not to maintain a “no costs” or “low costs” regime upon appeal. Thirdly, there are separate rules which provide for qualified one-way costs shifting in specified cases. In my view rule 52.9A is not concerned with one-way costs shifting.
ANY APPLICATION UNDER 59.2A HAS TO BE MADE PROMPTLY
The Court went on to stress than any application under 59.2A has to be made promptly and is usually made in writing.
- If an appeal is brought from a “no costs or “low costs” jurisdiction, both parties should give prompt consideration to whether they (a) want and (b) would qualify for such an order. Very often they will not want such an order, because they desire to recover their costs if they win. So be it.
- It is important that any application for an order under rule 52.9A is made at an early stage, so that both parties know the costs regime under which they are proceeding. Rule 52.9A (4) requires the application to be made “as soon as practicable”. That does not mean immediately. It envisages that both parties will require a reasonable time in which to consider their position.
- If the appellant seeks an order under rule 52.9A, it may be convenient and economic to include such an application in the appellant’s notice, but the rule does not require that. Mr Paul Joseph for the Secretary of State points out that both parties may need time to consider to their position once they know whether permission to appeal has been granted and upon what grounds. He suggests that a sensible cut-off point would be two weeks after the grant of permission has been notified to the respondent. That is the date by which the respondent must serve the respondent’s notice if any. I can see force in that submission, but it is not necessary to decide that question in the present case. Furthermore it would be undesirable to attempt to cater for all the factual circumstances which may arise. Anyway it is not the function of this court to re-write the rule.
- Once made the application can then be dealt with in writing at modest cost, unless the court otherwise orders. Any challenges to the court’s decision will not be entertained unless the court has made a clear error of principle.
- In the present case the applicant has applied far too late for an order which the court has no power to make. I express the hope that no such application will ever be made again on the eve of an appeal.
- It would be helpful if the literature provided by HMCTS to appellants and respondents drew attention to the court’s power under rule 52.9A and the need to make any application under that rule as soon as practicable. In the meantime I hope that appellants and respondents will take note of this judgment.