IO (Sri Lanka) v Secretary of State for the Home Department

Lord Justice Ward:

1. Permission was granted on 28 February. The respondent, the Secretary of State, would have been informed by the court that permission had been granted. By 14 March they were informed by the appellant that the appellant was preparing for their appeal. A letter was sent on 28 March asking for details of the basis upon which Sedley LJ granted permission; it is said that letter was not received. We do not know whether there was a chasing letter; what we do know is that on 20 February, the Treasury Solicitor wrote to the court -- and I interject that, speaking for myself and I know our Listing Officer, we are grateful to Mr Snackenberg for keeping the court informed -- seeking an adjournment because they did not yet know how Sedley LJ had arrived at his conclusion for giving permission. They sought an adjournment; Sullivan LJ said that that would be granted, unless the appellant’s solicitors served certain documents, including their advocate’s statement and a note of the Lords Justices’ reasons, and their skeleton argument, by 1 June. The appellants did that; on the same day an offer was made to allow the appeal, and remitted to the tribunal for hearing; that was received on 6 June. There was a conference fixed with counsel some days later; the response came on the 16 th . The appellant wanted the appeal allowed, and an order for indefinite leave in one shape or other to be substituted.

2. So there the matter stood when it was referred to me earlier this week; on an assumption that the case had settled and the argument would be about costs, I said the matter should be listed rather than adjourned. To that extent, the court is responsible for incurring the costs of this hearing; but it has produced the good consequence of a compromise, not quite on the terms offered by the Secretary of State, for there has been an improvement on that position in that the Secretary of State has agreed to give independent consideration to the merits of the Article 8 case, and has agreed that rather than incur the immediate costs of a rehearing in the tribunal, that hearing should be postponed until after 4 October.

3. This court usually proceeds upon a basis that if the Secretary of State is going to throw his or her hand in, he or she should do so within 28 days of the grant of permission to appeal; that did not happen. If it did not happen, ordinarily we would order the Secretary of State to pay the costs of a compromise reached after 28 days, and certainly a compromise put forward less than three weeks before the anticipated date for hearing. On the other hand, I accept that the Secretary of State has some reasons for not having made the conciliatory gesture until 1 June. They were struggling to get a note of the judgment; they had asked for a transcript, and they had not got it; they asked for a note, and they did not get it until 1 June; so there are some circumstances exonerating them.

4. Why was the case not compromised? Mr Mahmood has made his concessions today; he has won a tiny victory. Rather than order the Secretary of State to pay the costs up to 1 June, and the appellant to pay the costs after 1 June, it seems to me that in doing broad justice to both parties, looking at the rights and the wrong, and the swings and the roundabouts, and the losses and the gains, the right order is no order for costs of this appeal, beginning to end.

5. So the appeal is allowed. The case is remitted on the terms of a draft that counsel will submit, with no order for costs. Order: Appeal allowed & remitted back to the Upper Tribunal.