The High Court has awarded indemnity costs* against the Secretary of State for her conduct in a judicial review claim for unlawful detention.

It comes as a Panorama documentary exposes systematic alleged abuse of vulnerable detainees by Home Office contractors G4S at Brook House detention centre near Gatwick Airport.

Vulnerable persons are routinely subjected to indefinite periods of immigration detention, often prolonged by Home Office incompetence and inefficiencies. Detainees with no address to go to are often stuck in detention for extended periods of time due to unexplained Home Office delays in providing them with accommodation.

In the case of R (on the application of YA) v Secretary of State for the Home Department (2017) (unreported but covered in the Guardian here), the Claimant was an asylum seeker from Chad and claimed to be a victim of torture in a Libyan prison.

After being detained by the Home Office, he applied for and was granted bail by the Immigration Tribunal, with a direction that the Home Office provide accommodation for him under the power in section 4 of the Immigration and Asylum Act 1999 (known as ‘section 4 accommodation’) within 14 days.

Related: Less than zero: how the UK forces poverty on asylum seekers and why it’s about to get worse

(As an aside, the Immigration Tribunal, unlike the Asylum Support Tribunal, has no power to order the Home Office to provide accommodation, but it appears that a forward-thinking Judge was trying to compel the Home Office to do the right thing – ie. release and accommodate YA).

The Home Office failed to do so. He remained stranded in unlawful detention awaiting a section 4 bail address for four more weeks.

During that time, YA brought a judicial review claim challenging his detention. A High Court judge ordered the Home Office to release and accommodate YA within 3 days.

Again, the Home Office failed to do so. They applied twice for extensions of time to arrange the accommodation.

The judge ordered the case back to Court and directed that the Home Office provide written reasons for its failure to comply with the previous Court order.

True to form, the Home Office failed even to comply with that requirement.

At the hearing, they were not represented by a barrister but sent a solicitor from the Government Legal Department, presumably to plead for mercy from the judge, despite having no rights of audience. According to the Guardian:

“I can only apologise,” he said.

It gets worse. The Judge was shown a witness statement from the Home Office stating that YA had been released the day before the hearing. This was news to his legal representatives who had not been informed.

Related: Inspectors condemn ‘unacceptable’ and ‘inhumane’ treatment of detainees at Heathrow Immigration Removal Centre

Mrs Justice Nicola Davies expressed deep concern at the length of time the Home Office had taken before YA was released, their “inconceivable” failure to find a barrister to represent them during the summer vacation period when there were lists of counsel available for emergency applications.

Marking the Court’s displeasure, she made an order for indemnity costs as the defendant’s conduct fell “outside the norm”.

*Indemnity costs

There are two bases on which costs may be assessed: the standard or indemnity basis. The party seeking a costs order must specify on which basis they want costs to be assessed.

Indemnity costs may be awarded where there has been blameworthy or abusive conduct by a party that is “outside of the norm”. (Examples include the aggressive pursuit of unjustified serious allegations of deception or fraud).

The main differences are that on the standard basis, the costs must be proportionate (in relation to the value of the claim or relief, complexity, additional work generated and any wider relevant factors) and either:

  1. Reasonably incurred; or
  2. Reasonable in amount (pursuant to the Civil Procedure Rules (‘CPR’) r.44.3 and Practice Direction 44.6).

The Court resolves any doubt it has about whether these requirements are met in favour of the paying party.

On the indemnity basis, costs are recovered if they are:

  1. Reasonably incurred; and
  2. Reasonable in amount (CPR r. 44.3 and Practice Direction 44.6).

Proportionality is irrelevant. Any doubt must be resolved in favour of the receiving party. In practice, a receiving party will normally recover a higher amount of costs on the indemnity basis.

Posted by Ben Amunwa

Founder and editor of Ben is a commercial and public law barrister with The 36 Group. He gives expert legal advice on employment, public law and commercial disputes to a wide range of clients.

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