Secretary of State for the Home Department v Barry  EWCA Civ 790
There are often circumstance when a case is built around more than one argument. Often one argument is the primary submission or basis for a claim with further arguments being ‘in the alternative’ or ‘further to’ arguments, separate from the primary case, but often of lesser importance.
The case of Secretary of State for the Home Department v Barry  EWCA Civ 790 provides a warning to those obtaining permission to appeal based on a particular ground of appeal, but then not pursuing that ground at the hearing itself.
In 2004 the Respondent entered the UK legally as a student. He was provided with further periods of leave to remain in the UK until November 2009. The Respondent had been in a relationship with a British citizen since 2007, they married in 2009 and had their first of two children in November 2009.
On the 7th July 2009, the Respondent assaulted someone with a Stanley knife. The Respondent pleaded guilty to unlawful wounding with an intent to cause grievous bodily harm. He was sentenced to three years imprisonment and was released in early 2011.
On the 4th June 2013 the Secretary of State elected to deport the Respondent under the automatic deportation provisions of section 32(5) of the UK Borders Act 2007. The Respondent appealed to the ‘First-Tier Tribunal’ (FTT), which allowed the Respondent’s appeal. The Secretary of State made an appeal to the ‘Upper Tribunal’ (UT) which was dismissed.
The Secretary of State was granted permission to appeal to the Court of Appeal, based on an argument presented in their Skeleton, that there was a systematic failure in how the UT applied the Immigration Rules. A number of years later when the Court of Appeal heard the case, the submission (that there was a systematic failure on the part of the UT) was not pursued.
Decision of the Court of Appeal
Suffice to say, the Secretary of State’s appeal was dismissed, the reasons for this being far beyond the scope of an article on legal costs. Within the Judgment, at paragraph 31, the Court of Appeal addressed a concern relating to the basis of the appeal:
“It is troubling that, having obtained permission to appeal to this court… the Secretary of State did not in fact pursue the argument that there is a systematic failure by the UT in determining cases such as the present one. In truth the appeal before this Court was advanced on the basis of the particular facts of this case and raises no issue of general importance.”
With that in mind, the Court turned to the issue of costs.
It was common ground between the parties that the Appellant was to pay the Respondent’s costs. The Respondent however sought costs on the indemnity basis.
In order to award costs on the indemnity basis, the Court of Appeal had to find that the Appellant’s conduct was “unreasonable to a high degree”. Referring to the case of Kiam v MGN Ltd (No.2)  EWCA Civ 66;  WLR 2810, the Court of Appeal confirmed that:
“In this contexts (unreasonable to a high degree) does not merely mean wrong or misguided in hindsight”
The Respondent based their claim for indemnity costs upon the fact that serious allegations had been levelled against the UT. These allegations suggested that the failure on the part of the UT was not an isolated issue but potentially a systematic failure on the part of the UT to correct obvious errors of law by the FTT. The Appellant had access to statistical data which would either support or refute these allegations however the Appellant failed to place the evidence before the Court. The Respondent argued that the permission to appeal had been upon the alleged systematic failure of the UT, however this argument had been abandoned without explanation. This amounted to a high degree of unreasonable conduct and therefore justified an award of indemnity costs.
The Appellant accepted that the Respondent should have been made aware that the systematic failure argument was not to be pursued at an earlier date. However, the Appellant argued permission to appeal was not granted for that reason alone:
The real issue in this case is whether a party who obtains permission on one basis (but not the sole basis) is entitled to continue in her appeal when circumstances change after the grant of permission and she decides not to pursue a certain aspect of it… Unless the continued appeal is hopeless, or where the Respondent is put to additional costs because of her conduct, then indemnity costs should not be awarded.
The Court of Appeal ordered that indemnity costs were appropriate in the circumstance. The only issue of general importance (which was the basis for allowing the second appeal to the Court of Appeal) was the potential systematic problem in the UT.
Having obtained permission (to appeal) on that basis, the Appellant failed either to make the submission good with evidence or to pursue the argument. She abandoned it without even explaining why. In my view, in all the circumstance of this case, the Appellant’s conduct was indeed unreasonable to a high degree.’
Absent specific rules, the award of indemnity costs is intended to be reserved for cases where conduct was ‘unreasonable to a high degree’. This case shows, specifically in appeal cases it is important to pursue the grounds of appeal on which permission to appeal was granted. Furthermore, should a particular ground of appeal fall away, it would be advisable to notify the Respondent of the same as soon as possible.
A potential wider application of the case goes beyond appeals specifically. The case provides some insight into the Court’s thought process when determining what constitutes ‘unreasonable conduct to a high degree’ and a subsequent award of indemnity costs. Making a fundamental argument/submission and then failing to follow through on the same may, in certain circumstance, satisfy the high bar for conduct being considered ‘unreasonable to a high degree’ and result in an award of indemnity costs.