Litigant in person to pay thousands in costs after falling foul of procedural rules

Emotions can run high in any litigation. In a case arising from unlawful detention, like Mlundira v Secretary of State for the Home Department [2025] EWHC 189 (KB), the stakes and emotions can be heightened. This case underlines how important it is to consider and respond to correspondence from the other side carefully nonetheless, and the advantages of professional representation to navigate procedural hurdles.

Mr Mlundira throughout the course of the litigation was successively the claimant (in the judicial review), the receiving party (in the costs litigation), both an applicant and a respondent (in the interlocutory proceedings) and an appellant (in the appeal). For convenience we will refer to him as SM throughout.  

SM had succeeded in his judicial review and had been awarded his costs. For reasons that are unclear SM, who had been represented for at least some of his unlawful detention judicial review, dealt with the resulting costs issues himself (aided by his sister).

The costs proceedings

Where they cannot be agreed, costs are assessed in the Senior Courts Costs Office, which despite its name is actually a court with its own procedural rules set out in CPR 47. Costs Judge Brown commented:

I do have some sympathy for a litigant in person trying to deal with these rules, and they are not necessarily that straightforward.

Things went wrong from the outset and unfortunately SM soon found himself in a hole, then kept digging.

The rules require that the amount sought in costs must be set out in a particular way in a document called a bill of costs. SM served a notice of commencement (which as its name suggests is how costs litigation begins) seeking approximately £9,500 in respect of his judicial review costs. Unfortunately he did so without including a bill of costs, or at any rate one that was in the format the rules demand.

This error was pointed out by the lawyer acting for the Home Office in the costs matter. She suggested that SM should serve a proper bill and agree that the 21 day period to respond with points of dispute would run from the date that was provided. Points of dispute are where the basis that the paying party seeks to have the bill reduced are set out.

The Home Office lawyer said if this was not agreed she would make an application to strike out the claim for costs. SM unwisely doubled down, refused to agree or even engage, and criticised the conduct of the opposing lawyer.  The lawyer tried again and sent a further mail to SM in response, suggesting a telephone discussion as their mail seemed to have been misunderstood. This offer was also intemperately dismissed by SM.

After the Home Office made the application to strike out the costs claim, a compliant bill was served, mysteriously dated prior to the original notice of commencement. Even now SM  would not agree that SSHD should have the usual 21 days to respond, and instead insisted on a response the following day (which happened to be 21 days after the notice of commencement had been served).

That approach was unsurprisingly rejected. SM then made his own application for striking out of the defence or summary judgment, accompanied by a series of unfounded allegations of misconduct by the Home Office lawyers. Meanwhile SM filed a replacement bill – which was itself later amended, and a fresh notice of commencement.

The Home Office responded with points of dispute and suggested that the two notices of commencement be regularised into one set of proceedings by consent. This offer was also rejected by SM.

When this car crash came before the judge, he dismissed both applications and ordered that SM should pay 80% of the Home Office’s costs of its application, summarily assessed at £1,880. That order was perhaps generous to SM. The reduction to 80% was on the basis that the Home Office ought to have been clearer in the mails to SM about the nature of his procedural errors, and ought to have applied for an Unless Order, rather than applying to strike out the claim.

SM was not content to leave matters there. Instead, now represented again, SM sought permission to appeal this interlocutory decision to the High Court, which deals with appeals from the Senior Courts Costs Office. Unfortunately that did not bring an end to SM’s procedural errors, as only an extract of the transcript of the hearing in the Senior Courts Costs Office was filed.

Permission was eventually granted following an oral permission hearing. Hill J could be forgiven a degree of bemusement about how this matter had ended up before her.

The appeal

There were three grounds of appeal. Ground one was that the order that SM should pay 80% of SSHD’s costs was flawed, as it failed to properly take into account the fact that he was successful in defeating the application to strike out his claim for costs. That was rejected for three reasons.

Firstly, Hill J pointed out that the rules are clear that although the “starting point” is that a successful party will receive his costs, other considerations can override that principle, and there were plenty of reasons to depart from the principle in this case.

Secondly, insofar as the judge had failed to directly cite the relevant rule in his judgment, that had less weight following Piglowska v Piglowski [1999] UKHL 27, the principle of which was summarised by Hill J as:

An ex tempore judgment should not be the subject of a narrow textual analysis.

(This rule is likely to become important to immigration practitioners in the light of the new practice direction which provides that: “written reasons should only be provided where they are expressly required by the Procedure Rules or where the interests of justice [require”])

In any event it was clear Cost Judge Brown had the principle in mind when making his order. This was even clearer once the full transcript had been provided, post-hearing, at the request of the judge. 

Thirdly the judge refused to accept that SM had been the “successful party”. Rather than focussing on the Home Office’s own application she looked at the question more broadly. Hill J pointed out that both party’s applications had been dismissed and considered that there was no successful party.

Ground two essentially argued that, as SM had in error failed to provide a compliant bill of costs with the notice of commencement, there had in fact been no need to respond to the notice of commencement until that had been done. It was argued that the strike out application had therefore been premature and unnecessary. Not only was that contrary to what SM had himself argued at the time, it was based on a misunderstanding of the rules. As Hill J explained:

52. The Judge was right to find that [SM] should have served a bill of costs with the notice of commencement under CPR 47.6(1)(b). However, notwithstanding that defect, CPR 47.9(2) (at least arguably) had the effect of requiring the Respondent to serve points of dispute within 21 days of service of the notice of commencement, or be at risk under CPR 47.9(3) of being denied the right to be heard further in the detailed assessment proceedings.

53. In those circumstances the Respondent was entirely justified in applying to strike out the Appellant’s defective detailed assessment proceedings. This was a proactive step, intended to protect the Respondent’s position…

There was simply nothing in Ground three, that Costs Judge Brown had been “clearly wrong” to require SM to pay the costs. The basis for this ground was that as SM was a litigant in person with health issues, he should have been afforded more latitude. Not only had Costs Judge Brown taken that into account, but Hill J considered that SM could not rely on his own ignorance of the requirements of the rules given that he had refused to engage with the Home Office lawyer when the defects were raised.

This was not quite the end of the matter. SM was the unsuccessful party in the appeal. He now pointed out that the Home Office had failed to file a Respondent’s Notice (as it had been directed to do). Hill J was sceptical that if this had been done SM would have realised that the appeal was doomed and withdrawn, but accepted that a reduction of 10% was appropriate, which brought the figure to £4,596.48.

The outcome

Ironically, in the event there was little resistance by the Home Secretary to the sum that SM sought in costs for his judicial review. Had SM accepted the Home Office’s suggestion of a discussion, it is likely that the whole procedural mess could have been avoided. Unfortunately for SM, the further litigation has absorbed the bulk of that sum, and of course he also now has his own costs of the appeal to pay on top of that.