With many thanks to the excellent and eagle-eyed Tim Buley of Landmark Chambers, this post covers the procedural protections against costs orders for legally aided and other litigants in the Upper Tribunal.
This is a major issue in judicial review proceedings in the Upper Tribunal; no-one who has been following the gradually growing judicial review jurisprudence of the Upper Tribunal can have failed to notice the significant number of increasingly high costs awards against litigants other than the Secretary of State for the Home Department. This has included costs awards against legally aided litigants.
Tim has pointed out that costs awards against legally aided litigants are almost certainly unlawful, at least in the way that they have been carried out so far by the Upper Tribunal. This is because of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 section 26 read with the Civil Legal Aid (Costs) Regulations 2013 at paragraphs 13 and 14.
In Rayner v The Lord Chancellor  EWCA Civ 1124 Moore-Bicke LJ observed that under the similar pre-existing costs protection regime it would not be reasonable for a legally aided person to have to pay costs absent an increase in resources:
At the risk of spelling out what is known to every civil practitioner, I should say a word about how that provision operates in practice. In the typical case the funded party is practically impecunious – otherwise they would not have received funding in the first place – and the Court does not normally regard it as reasonable to make any order for immediate payment of the non-funded party’s costs. But there will be cases where their financial circumstances have improved in the meantime; and in such a case an order may be made. Provision is normally also made for the possibility of their financial circumstances changing in the future – what used to be called a “football pools order”.
It would be fair to say that senior Upper Tribunal judges have not traditionally been experienced civil practitioners. Instead, the Upper Tribunal has routinely been making costs orders against legally aided litigants.
Contrast the normal form of costs orders in the Administrative Court and the Upper Tribunal:
The costs of preparing the Acknowledgmert of Service are to be paid by the Claimant to the Defendant. The full costs are in the sum of £xxx. The Claimant having the benefit of cost protection under section 26 of [LASPO], the amount that [s]he is to pay shall be determined on an application by the Defendant under regulation 26 of the [2013 Regs]. Any objection by the Claimant to the amount of costs shall be dealt with on that occasion.
The costs of preparing the Acknowledgement of Service are to be paid by the Applicant to the Respondent, summarily assessed in the sum of £xxx unless within ten working days the Applicant notifies the court and the Respondent, in writing, that he objects to paying costs, or as to the amount to be paid, in either case giving reasons. Where no reasons have been received within the time specified in the order, the order for costs shall become absolute.
The Administrative Court sets up an automatic procedure whereby the Secretary of State must make an application for costs. Such applications are simply unknown against legally aided litigants. The Upper Tribunal makes a presumptive costs order that will take effect unless objection is made by the litigant. These are then being enforced by the Secretary of State against litigants with no money at all.
Tim also points out that rule 10(7) of the Tribunal Procedure (Upper Tribunal) Rules 2008 offers some protection to all individual litigants:
The Upper Tribunal may not make an order for costs or expenses against a person (the “paying person”) without first—
(a) giving that person an opportunity to make representations; and
(b) if the paying person is an individual and the order is to be made under paragraph (3)(a), (b) or (d), considering that person’s financial means.
It was apparently Deputy President Ockelton himself who pointed this out to Tim at a recent hearing on these issues which may or may not result in a published judgment. It is hard to see how the Upper Tribunal costs orders made hitherto comply with this rule because the tribunal does not assess means before making costs orders.
Returning to legally aided litigants, Tim suggests that where a litigant is legally aided it would be wise to make sure that the legal aid certificate is included in the bundle or at least sent to the Upper Tribunal so that the tribunal is aware that the person is legally aided, that it is also flagged up in grounds for good measure, that objection is made if the costs order takes the form above and that the objection goes further than simply observing that the client is legally aided, which experience suggests is insufficient with at least some Upper Tribunal judges.
If you have any experiences of dealing with these costs orders, do please leave a comment below.