The Jackson reforms were not intended to give appeal courts the ad hoc power to introduce one-way costs shifting, their architect has ruled.
Lord Justice Jackson said he wanted to clarify the purpose of rule 52.9A – introduced on 1 April 2013 – so as to prevent further applications along the same lines.
His lead judgment in JE v Secretary of State for the Home Department  EWCA Civ 192 – an appeal from the Asylum and Immigration Tribunal – was handed down in February but has only just been published on Bailii.
The rule at 52.9A(1) provides that “in any proceedings in which costs recovery is normally limited or excluded at first instance, an appeal court may make an order that the recoverable costs of an appeal will be limited to the extent which the court specifies”.
Counsel for the applicant argued that this rule empowered the court to make a one-way costs shifting order, placing particular reliance on the last seven words.
Jackson LJ said it was based “upon a misconception which needs to be exposed before any similar applications are made to this court”.
He explained: “Rule 52.9A (1) refers to ‘the recoverable costs of an appeal’. That phrase means the costs recoverable by the winning party, whoever the winner may turn out to be. The rule deals with appeals coming up from a ‘no costs’ or a ‘low costs’ jurisdiction.
“It enables the appeal court to put in place a similar regime to that which applied in the court or tribunal below. The rule does not contemplate an order in favour of just one party, win or lose.”
He cited three factors that supported this interpretation. First, Jackson LJ noted that “the rule is specifically concerned with appeals from jurisdictions in which all parties are subject to the same restrictions upon recoverable costs”.
Secondly, the three considerations set out in paragraph (2) of the rule – which provides that in making such an order the court will have regard to the parties’ means, the circumstances of the case and the need to facilitate access to justice – were relevant to considering whether or not to maintain a ‘no costs’ or ‘low costs’ regime upon appeal.
“Thirdly, there are separate rules which provide for qualified one-way costs shifting in specified cases. In my view rule 52.9A is not concerned with one-way costs shifting.”
Jackson LJ emphasised that applications under the rule need to be made “as soon as practicable”. This need not be immediately, and the judge saw force in a suggestion that it should be made no more than two weeks after the grant of permission has been notified to the respondent.
He concluded: “In the present case the applicant has applied far too late for an order which the court has no power to make. I express the hope that no such application will ever be made again on the eve of an appeal.
“It would be helpful if the literature provided by HMCTS to appellants and respondents drew attention to the court’s power under rule 52.9A and the need to make any application under that rule as soon as practicable. In the meantime I hope that appellants and respondents will take note of this judgment.”