In The Queen (on the application of Bhatt) -v- The Secretary of State for the Home Department  EWHC 1724 (Admin) Helen Mountfield QC (sitting as a Deputy Judge) made some interesting observations in relation to the Denton principles, conduct and costs. There are also important points made about the need for clarity in skeleton arguments.
“…it is unattractive for a public body to seek relief from sanctions itself while opposing them for an opponent without good cause.”
The claimants had been unlawfully detained by the Home Office and wrongfully removed from the country. The subsequent handling of their cases was also poorly handled with documents being lost and excessive delays. They brought an action for judicial review. However the judge held that there was no properly pleaded public law claim.
RELIEF FROM SANCTIONS REQUIRED BY BOTH PARTIES
Relief from sanctions for Defendant
As I have noted above, the Defendant was 35 days late in filing and serving detailed Grounds of Resistance. This was said to be as a result of an oversight. It was therefore necessary for Mr McKendrick, counsel for the Secretary of State, to apply for relief from sanctions, pursuant to CPR 54.12. I was invited to apply the principles in Denton v TH White Ltd  EWCA Civ 904,  1 WLR 3296.
The oversight was not a trivial one, especially in the light of the previous handling of the Claimants’ FTT and UT appeals. ‘Oversight’ is not a very convincing excuse. On the other hand, nor was the delay an especially lengthy one, so it would not be right to describe it as very serious and significant. Nor was it suggested that the delay had caused the Claimants any prejudice. Another aspect of the circumstances was that the way in which the claim was pleaded was diffuse and frankly confusing, and it would have been very difficult for me to evaluate it without the assistance of counsel for the Secretary of State’s pleadings and submissions. That is a not insignificant factor in concluding that the good administration of the court was best served by granting relief from sanctions.
Late service of evidence by Claimant
Mr Justice Lewis directed that if the Claimants wished to rely upon further evidence they should do so within 21 days of service of the detailed grounds of resistance. They did not do so. Evidence was adduced late in the context of the Schedule of Loss, accompanied by statements of truth from the Claimants signed on 9 January 2015. The Defendant invited me to disregard this evidence on the basis of the delay. However, in the circumstances, I would not have thought it right to shut the Claimants out from relying on the late evidence, had it been relevant. It was not suggested in the Defendant’s skeleton argument that the late service caused the Secretary of State prejudice, and it is unattractive for a public body to seek relief from sanctions itself while opposing them for an opponent without good cause.
The claimants’ application was dismissed. However the judge had some clear views as to the costs consequences.
The Defendant having succeeded in defending this application for judicial review, I will consider any application for costs which she may make in writing. Notwithstanding the usual rule that the winner obtains its costs from the loser, in view of the circumstances of this case; the failure to comply with the pre-action protocol; and the delays in lodging both Acknowledgement of Service and Detailed Grounds of Defence, it may take some compelling factor to persuade me to make any order that the Claimants be liable for the Defendant’s costs.
The fact that the claim has not succeeded means that strictly I do not need to address the schedule of costs lodged by the Claimants. However, the Claimants are privately paying clients and I regret that in fairness to them, I ought to say that I regard the sum which would have been claimed for costs in this case – which presumably is the sum they are to be charged on a solicitor-client basis – as grossly excessive. It is four or five times more than I commonly see in cases of an equivalent nature which have been well prepared by excellent and efficient advocates. As pointed out in the Defendant’s skeleton argument, the Claimants’ lawyer has not begun to plead the case properly or to comply with the practice directions as to what should be included in a claim. Moreover, even if the Claimants had succeeded, I would have felt unable to award the costs of the skeleton argument against the Defendant, for the reasons given by Lord Justice Jackson in Inplayer Ltd v Thorogood  EWCA Civ 1511 at -. In that case, refusing to award the costs of a skeleton drafted by the same advocate because it failed to fulfil the intended clarificatory purpose of a skeleton argument, Jackson LJ described the skeleton as constituting “[many] pages of rambling prolixity through which the reader must struggle to track down the relevant facts, issues and arguments”. I very much regret to say that the skeleton argument in this case suffered from the same defect. Had this been a case in which the Defendant would have been ordered to pay the Claimant’s costs in principle, it would have been an uphill struggle for the Claimant’s advocate to persuade me to award a fraction of the sum claimed (though I would have considered submissions from both parties as to quantum before reaching a concluded view). Whether or not the costs can be enforced against the Claimants may be a matter for the Legal Ombudsman; the claim having failed, it is not a matter for me.
In a postscript to the judgment the judge observed:
“When I sent a draft of this judgment to the legal representatives (in the usual way), for typographical and other corrections, the Claimant’s advocate said that the reference to the Legal Ombudsman (LeO) “appears to make no sense in this specific matter. LeO may be relevant to a bill in non litigation matters”. He suggested that a contested bill would be assessed by the Senior Costs Office. I have checked this with the Legal Ombudsman’s office, and they have confirmed that if a client wishes to challenge a bill from a regulated lawyer in connection with the conduct of litigation as being manifestly excessive, the Ombudsman has jurisdiction to consider it. My reference to the Ombudsman is therefore correct.”
(The Defendant did not pursue an application for costs and voluntarily extended its time for the filing of a formal complaint.)
Procedure and administrative law
- Denton, Mitchell and Administrative Law
- Late witness statements in Judicial Review Proceedings
- A word about bundles: rules apply to judicial review too.
- More on skeleton arguments: do them properly or you won’t get paid.
- Skeleton arguments: if you don’t do them properly you won’t get paid.
- Drafting a skeleton or want to serve an additional skeleton argument? Then you had better read this
- Useless bundles; lengthy skeletons and judicial ire: The Court of Appeal rules inability to impose “old fashioned” sanctions.
- Skeleton arguments more examples online: You can have Cotton if you can’t have silk.
- Drafting skeleton arguments and notices of appeal: more examples online.