New Guidance on Wasted Costs in the First-tier Tribunal (Immigration & Asylum Chamber)

The President of the FtT (IAC) released new guidance on Wasted Costs yesterday and can be found here https://www.judiciary.uk/wp-content/uploads/2018/07/costs-guidance-2018.pdf

This follows a Presidential Panel of the FtT hearing several appeals in September 2017.

A very quick observation about the issue of the two wholly separate concepts that are the Indemnity Basis and the Indemnity Principle, and what is (in my opinion) a misleading part of the guidance.

In section 4, the guidance deals with awarding costs on the Indemnity Basis. I think the subtitle “4.1. Indemnity principles established by Noorani:” is a bit misleading. The section refers to principles of law established to determine if ‘Indemnity costs’ should be awarded i.e. costs assessed on the Indemnity Basis (where proportionality does not apply and the benefit of the doubt is given to the receiving party), rather than the default Standard Basis (where proportionality applies and the benefit of the doubt is given to the paying party). This is wholly separate to the Indemnity Principle (that a costs order is to indemnify loss and nothing more) which applies to all inter partes costs awards, limiting recovery to that which the receiving party is liable for (dis-applied to some extent for CFAs, and for legally aid cases regarding the rates and costs limitations thereon but not the scope).