The applicant had been successful in a judicial review taken by him of a decision of the Refugee Applications Commissioner to make a negative recommendation on his application for asylum. During the course of the hearing, the court raised the issue of whether the provisions of Article 9 of the Qualification Directive (2004/83/EC), pursuant to which discriminatory laws or disproportionate punishment constitute persecution per se, had any bearing on the case. In the course of the subsequent submissions, the applicant’s case developed from a complaint alleging failure to decide whether or not he was gay into a complaint that the Commissioner had not addressed his fear of prosecution in his country of origin on account of his sexuality.
He argued that the approach of the Court of Justice of the European Union (CJEU) in C-199/12, C-200/12 & C-201/12 X,Y,Z had not been followed. Although the fear of prosecution had been communicated to the Commissioner, it had not been contained in the applicant’s written submissions before the High Court but was made for the first time during the hearing. The court quashed the decision by reference to that matter, describing it as a significant jurisdictional defect which merited an order of certiorari where a simple appeal would not be an adequate response.
At the costs hearing, the applicant contended that costs followed the event and that he should be awarded his costs, whereas the Commissioner argued that no order as to costs should be made, as the matter by reference to which the decision had been quashed had not been pleaded or addressed in written submissions.
The court held that the justice of the case required the applicant to be awarded his costs.
The court considered that, were that not to happen, the applicant might become indebted to his lawyers for the costs of an action he won or, depending on the nature of the arrangement with them, they might not be paid for an action which they successfully prosecuted. It pointed out that the result of the case occurred as a result of exchanges between the parties and the court, which was normal in the common law world in civil cases.
However, it held that the justice of the case required some account be taken of the manner in which the result was finally achieved and, in the light of that, it awarded the applicant the costs of the action on the basis of a one day case, even though the hearing had lasted a day and half and an earlier, aborted hearing, in respect of which a wasted costs order had been made against the applicant, had lasted for around an hour or so. The court set off the wasted costs order against the second day of the resumed. It held that no costs were to be recovered in respect of the applicant’s original written submissions because they did not address the point on which the applicant succeeded and failed to address the important procedural issues.
It awarded the applicant 50% of the costs of the supplemental written submissions because, on the one hand, they were correct about the circumstances in which it is permissible to review Office of the Refugee Applications Commissioner (ORAC), but were not sufficient to persuade the court that the Commissioner’s failure to determine the applicant’s sexuality, and did not address his fear of prosecution, on the other. It held that his solicitor’s instructions fee and counsel’s brief fees were to be reduced by 25% to reflect the fact that no account was taken in the preparations for the case of the failure of the Commissioner to decide or deal in any way with the applicant’s fear of prosecution. As none of the pre-trial work by the applicant’s lawyers related to the point on which the applicant succeeded, it would be unfair to require the Commissioner to pay for all of that work.
The court awarded the applicant part of his costs.