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The Court of Appeal has handed down judgment in an appeal brought by a non-gendered person, Christie Elan-Cane, challenging the Government’s policy not to issue non gender-specific “X” passports to non-gendered, non-binary and other trans persons who do not identify as, or exclusively as, male or female.

The Court of Appeal has also given judgment on the Secretary of State’s cross-appeal on the separate issue of the correct approach to reductions to costs caps in public interest proceedings. The Court of Appeal has dismissed both Christie Elan-Cane’s appeal and the Secretary of State’s cross-appeal. 

The Appeal and the SSHD’s Cross-Appeal on engagement of Article 8 ECHR

The Court of Appeal ruled that the Government does not have a positive obligation under Article 8 ECHR to provide unspecified sex/gender “X” passports (which are permitted under the relevant international standards and provided by a number of other countries worldwide), upholding the finding of the Administrative Court that: 

“the Government was entitled to take the view that it was inappropriate to consider the issue of passports in isolation.”  (Paragraph 72)

The Court accepted the Secretary of State’s submission that the Government should be given further time to consider policy applying to non-gendered and non-binary people more broadly than passport policy and that the margin of appreciation to change passport policy had not at present been exhausted (paragraph 110). The Court also dismissed the Appellant’s claim that the UK’s current passport policy constitutes unlawful discrimination contrary to Article 14 ECHR or is irrational or otherwise unlawful on conventional public law grounds. 

In its judgment, the Court of Appeal recognised that the right to respect for an individual’s private life guaranteed by Article 8 ECHR includes respect for the fundamental identity of non-gendered and non-binary people and dismissed the SSHD’s Cross-Appeal that Article 8 was not engaged on the facts of the case.  The Court of Appeal held that: 

There can be little more central to a citizen’s private life than gender, whatever that gender may or may not be… gender is relevant as one of the most important aspects of private life …the Appellant’s gender identification undoubtedly engages Article 8.” (Paragraphs 47-48)

See also Lord Justice Irwin’s concurring judgment at paragraph 124.

The SSHD’s Cross Appeal on Costs

The Court of Appeal also dismissed a separate cross appeal brought by the Secretary of State against the decision of the Administrative Court reducing the costs payable by the Claimant to the Secretary of State below the level of an agreed mutual costs cap (agreed in lieu of a costs capping order under sections 88-90 of the Criminal Justice and Courts Act 2015) and arguing that any reduction in the costs awarded to the Secretary of State should be made to the amount of costs incurred and not to the capped amount. 

The Court of Appeal dismissed the Secretary of State’s challenge, finding that the Judge had not erred in law in applying a 33% reduction to the capped amount of costs recoverable by the SSHD (reducing the costs awarded to the Secretary of State by a third of the cap of £3000 to award costs in the amount of £2000), rather than to the total amount of the SSHD’s actual costs (which were much higher).  There was no challenge to the level of the reduction (33%), which reflected the fact that the Appellant had partially succeeded before the court below, by establishing that the Appellant’s Article 8 rights were engaged by the Secretary of State’s passport policy. 

The Court held that in principle judges may apply any appropriate reduction to costs (whether to reflect success, conduct or for any other applicable reason) to the capped costs, rather than to the actual, uncapped costs of the party to whom costs are to be paid.  The Court of Appeal held that this accorded with the underlying public policy which underpins the costs capping regime in the 2015 Act, namely to promote access to justice for proceedings in the public interest.  In such a case the Court held that,

both sides will know from an early stage what their maximum exposure to costs will be, but they will also know that the costs which they actually incur in pursuing or defending the litigation are likely, to a greater or lesser extent, to prove irrecoverable.  That is the price which has to be paid, in the wider public interest, so that justice can be obtained in important cases of this character.“  (Paragraph 149)

The Court stated that the relevant policy considerations “should inform the whole of the exercise of judicial discretion on costs” under CPR Rule 44.2 (paragraph 150).  As well as the underlying aim of promoting access to justice, an undesirable effect of applying reductions to the actual costs incurred  would be that if a successful party knew that they would in practice always receive the full amount of the cap, because any reduction to reflect other factors would be applied to their much higher, actual costs, then this could incentivise unreasonable or disproportionate conduct of the litigation and prevent suitable concessions being made.   

The judgment can be found here. The first instance decision can be found here

Kate Gallafent QC, Tom Mountford and Gayatri Sarathy acted, pro bono, for the Appellant, Christie Elan-Cane.
Monica Carss-Frisk QC and Rachel Jones acted, pro bono, for the Intervener, Human Rights Watch.
Sir James Eadie QC acted for the Respondent, the SSHD.

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