Indemnity Costs Awarded Against the Home Office for Failure to Comply with Court Orders

Indemnity Costs Awarded Against the Home Office for Failure to Comply with Court Orders

In R (on the application of YA) v SSHD, 23rd August 2017, unreported, the High Court recently took the unusual step of making an order for costs to be paid on an indemnity basis against the Home Office in a case where it failed to comply with multiple Court Orders.

The unusual sanction arose from the Home Office’s failure to comply with an Order of the First-tier Tribunal to release a vulnerable asylum seeker, who was a suspected victim of torture, from detention and provide him with s.4 accommodation.

Following non-compliance by the Secretary of State, the matter was brought back to Court and a (now irritated) High Court Judge ordered the Home Office to comply with the Order within 48 hours. The non-compliance continued with the Home Office applying twice for extensions of time to find suitable accommodation.

When the matter finally came back to Court with directions for the Home Office to provide written reasons for its non-compliance with the previous Orders, they were unrepresented, claiming not to be able to find any available Counsel. No written reasons had been produced explaining the previous failings and the High Court was informed via a letter that YA had in fact been released the previous day. It appeared the Home Office had not informed YA’s representatives of this.

In a damning judgment, Nicola Davies J poured scorn on the Secretary of State’s failure to provide proper representation, noting that lists of available counsel were available to the GLS even during the Court vacation. She went on to comment on the lengthy failure to comply with the order of the First-tier Tribunal to release YA, which was compounded by the failure to produce written reasons for this failure, when ordered. The net result was an Order that the Home Office pay indemnity costs from the outset of the case.

Notes: Although unreported, this is a case that demonstrates the sanctions the higher Courts are willing to implement when faced with disregard for its Orders and directions. One can only hope that the Upper Tribunal will note this approach and toughen its own stance, which at present often amounts to little more than tutting and rolling of the eyes when it comes to repeated breaches of Orders and Directions by the Home Office.

By Dafydd Paxton