To encourage increased consideration of whether to make costs orders, Clause 77 provides a duty on the Tribunal Procedure Committee to introduce tribunal procedure rules in the Immigration and Asylum Chamber, which will lead to judges more regularly considering whether to make a wasted costs order, an unreasonable costs order or a tribunal costs order under the new Clause 76 provision. That will ensure that circumstances and behaviours which have warranted the making of costs orders previously will more often give rise to judicial attention. Existing case law identifies the types of circumstances and behaviours which have led to costs orders being made or considered, and the principles applied by the courts. These have included showing a complete disregard for procedural rules through, for example, abusing court processes in relation to evidence or the timing of applications.
Clause 77 requires procedural rules which identify circumstances or behaviours that, absent reasonable explanation, the tribunal will treat as warranting
consideration of the making of a costs order. The rules thereby introduce a presumption that requires the representative or other relevant party responsible for such circumstances or behaviour to explain themselves and why such a costs order should not be made. To ensure fairness, Clause 77 applies both to the party’s representatives and to the Home Office direct. This will ensure the regular consideration of costs orders by the tribunal. However, importantly, the tribunal will retain absolute discretion as to whether to make an order at all in all cases.
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Amendments 175ZC and 175ZD to Clause 77 would reduce the mandatory nature of the provision to a more passive one. This would work against the Government’s intention for this clause, which is to encourage the more frequent consideration of costs orders where they may be warranted, while upholding the tribunal’s discretion to decide whether an order should be made.
I promised to try to get those details for the noble Lord, Lord Rosser, and I will do so, but for the reasons I have outlined, I urge noble Lords to withdraw their opposition and not press Amendments 175ZC and 175ZD.