Solicitors named and shamed in another Hamid judgment

R (DVP & Ors) v The Secretary of State for the Home Department [2021] EWHC 606 (Admin) (17 March 2021)

Exercising the R (Hamid) [2012] EWHC 3070 (Admin) jurisdiction, Dame Victoria Sharp PQBD and Tipples J have held that solicitors acting for asylum seekers in relation to their accommodation had significantly abused the urgent applications procedure by not disclosing the information required by Form N463, failing to identify why the application was urgent, purporting to act for residents who had not instructed them, and breaching their duty of candour by failing to disclose that their clients had been transferred out of the accommodation by the time the urgent application was made. The court was considering a reference made under the Hamid jurisdiction by Swift J who had identified significant concerns about the conduct of the claims by Duncan Lewis LLP following an urgent application that had come before him on that day in the Administrative Court, which related to six different claims for judicial review, all of which had been issued in materially identical terms. Dame Victoria Sharp PQBD and Tipples J, the Divisional Court, stressed that Administrative Court often deals with urgent applications which is a very important part of its work in the public interest. A High Court judge is always available to hear applications during court hours in the week, in order to deal only with urgent applications. Cases that need to be dealt with out of normal court hours on an urgent basis, including weekends, public holidays and vacation, are dealt with by the High Court judge on “out of hours” duty.

The Divisional Court identified what is required when an urgent application is made to the Administrative Court, and what actually happened in this case. Thus, they addressed the specific issues to which this case gave rise and their conclusions in respect of them quite shortly. It was apparent that there was a significant abuse of the “urgents” procedures in this case. DVP, CBW, MDE, RAM, ASH and BMS were asylum seekers accommodated at Penally Camp in Pembrokeshire, a former military barracks. The claimants’ solicitors (Duncan Lewis) issued pre-action protocol letters to the SSHD requesting their transfer to other accommodation. On 29 October, five of the claimants were transferred out of the camp. On 6 November, the SSHD replied that the claims were misconceived. But Duncan Lewis made further demands for “all asylum seekers” to be transferred out of the camp, challenging the SSHD’s decision to use the camp as accommodation for asylum seekers. On 18 November, the sixth claimant was transferred out of the camp. Further, the SSHD challenged Duncan Lewis’s standing in relation to the other residents of the camp. On 23 November, Duncan Lewis indicated their intention to issue judicial review proceedings on the basis of the SSHD’s alleged failure to review the accommodation arrangements. They completed a form N463 for urgent applications in respect of all six claims but they failed to disclose that the claimants had been transferred out of the camp.

The court refused the application for interim relief and identified defects in the application and made the referral under the Hamid jurisdiction that operates to ensure that lawyers conducted themselves according to proper procedure. 

The Divisional Court

In relation to urgent applications in the Administrative Court, the court held that it was of the utmost importance that limited resources are not abused. Over the years, the courts have developed rules to ensure this does not occur. Importantly, if cases that are not truly urgent displace those that are, this will have serious consequences for the litigants who have a good reason for applying for urgent relief. Two things flowed from this and it was the court’s view that:

7. … First, those seeking to make use of the “urgents” procedures are under a duty to the court to satisfy themselves that the application they are considering really is urgent and to adhere, to the letter, to the rules of court which protect the procedure from abuse. This has always been the case. The fact that case papers can now be filed electronically, has not altered the position. Secondly, any abuse of the “urgents” procedures will not be tolerated by the court and will be met with appropriate sanction.

The court said that the essential Administrative Court Judicial Review Guide 2020 set out the practice for urgent cases and applications for interim relief and reminded all litigants and their advisers that they must (a) clearly set out the reasons for urgency on the face of the application notice (b) comply with their duty of candour by disclosing all the relevant material to the court and (c) comply with the CPR and any other obligations owed to the court. Further, if procedures for urgent consideration were abused, the court could make references to professional regulators for consideration of disciplinary action. Overall, the court judged that because the claimants’ counsel had not been able to identify the trigger for the urgent application as distinct from the trigger for issuing the claims, there had been a clear abuse of the urgent application procedure.

As for the completion of Form N463, the court said that the form should contain details of the circumstances giving rise to the urgency, the timescale sought for consideration of the application, the date by which any substantive hearing should take place and the details of any notice given to the defendant and interested parties. In addition to the Guide, the form says on its face that it “must be completed by the claimant or the claimant’s advocate if exceptional urgency is being claimed and the application needs to be determined in a certain time scale”.

The middle of page 1 of Form N463 says “You must complete sections 1 to 5 and attach a draft Order”. Indeed sections 1 to 5 of the form are entitled SECTION 1 – Reasons for Urgency, SECTION 2 – Proposed timetable, SECTION 3 – Justification for request for immediate consideration, SECTION 4 – Interim relief, and finally SECTION 5 – Service. Further, the form concludes with a declaration on page 3 which has to be signed by the claimant or the claimant’s advocate and provides “I confirm that all relevant facts have been disclosed in this application”. On the issue of the form, it was observed by the court that Ms Stephanie Harrison QC:

59. … acknowledged that it had been a fundamental mistake on the part of Duncan Lewis to fill in this form by cross-referring to other documents. She accepted this made it extremely difficult for the court to find the material information and understand what the application was about. Mr Hossain accepted full responsibility for this as he was responsible for overseeing the completion of form N463 by solicitor 2.

64. …  informed the court that the form N463 had not been reviewed before it was sent out. It should have been. Properly supervised, solicitor 2 could not have signed the confirmation as the claimants’ advocate. This is because he had failed to disclose any of the relevant facts in the application.

Furthermore, there was also a significant, unexplained, delay in making the application and Duncan Lewis had omitted to set out the interim relief sought and the reasons for it. None of the relevant facts had been disclosed.

The court also observed that the solicitors were purporting to act without instructions and it was fundamental that lawyers could not act without instructions. Ms Stephanie Harrison QC submitted that the claimants were bringing the claims on behalf of others as part of a “systemic and generic challenge” to the way people were transferred into the camp. There were more than 100 people at the camp who had not had any contact with Duncan Lewis or instructed them to act on their behalf, so Duncan Lewis had no means of knowing what the interests of those people were. The claimants themselves had all been transferred out of the camp before the urgent application was issued. The Divisional Court followed the decision in R (KMI) v SSHD [2021] EWHC 477 (Admin) and held there was no clarity at all in relation to the alleged beneficiaries of the urgent relief which the claimants sought.

Further, the court addressed the duty of candour and explained that the information placed before the Administrative Court in support of an urgent application must be presented in a fair and even-handed manner, not in a way which was designed to promote the applicant’s own case. In light of R (SB (Afghanistan)) v SSHD [2018] 1 WLR 4457, the court had to be able to rely on the applicant’s compliance with the duty of candour, because of the fact urgent applications in the Administrative Court were usually made on very limited notice to a defendant, or exceptionally without notice. In the present proceedings, form N463 did not identify that the claimants had left the camp, the delay in making the application, or the SSHD’s assertion that the application was misconceived because Duncan Lewis were not instructed by others at the camp. The court found that there was no excuse for failing to include that information. 

The court was unimpressed by Duncan Lewis and their counsel’s complaint that when the SSHD filed short written submissions in answer to the claimants’ application, it had been done at the eleventh hour and that there was “no procedural provision for her to interpose in this way”) was telling. The claimants and their legal advisors had singularly failed to comply with their own obligations to place critical information before the court; and then objected, on purported procedural grounds, to the SSHD so doing. The court found that in the end, it was only the SSHD’s submissions, that informed the judge “up front” that none of the claimants were at the Penally Camp and demonstrated why the “urgent application” to the court, was not in fact urgent at all. As to the overall conclusion and disposal of this claim, Dame Victoria Sharp PQBD held that:

78. It is essential that the court can have confidence in the thoroughness and objectivity of practitioners, solicitors and counsel, who make urgent applications in the Administrative Court. It follows that all who do so must understand their professional obligations, must prepare such applications with care, must comply with the requirements set out in the Guide and set out the information they are required to provide in the form N463.

79. This application was a significant abuse of the procedures made available for urgent applications in the Administrative Court and should never have been made. Moreover, the claimants’ legal team seem to have misunderstood or to have overlooked their duty to make full, fair and accurate disclosure of all material information to the court; and in consequence, they failed to comply with their obligation of candour.

80. The court will not tolerate the abuse of its process, and will not hesitate to refer those who do so, to their professional regulators. We have given very careful consideration to doing so here.

In determining what should be done, the court had regard to the fact that Mr Hossain and counsel had all accepted responsibility for what happened and have apologised to the court. The court also had regard to the regret Ms Harrison QC expressed on behalf of the lawyers concerned, that Swift J’s criticisms of their application had necessitated a hearing before the Divisional Court when the court is under significant pressure in the midst of a pandemic. She noted that Mr Toufique Hossain, the lead solicitor at Duncan Lewis with responsibility for the six claims expressed his profound regret for his failures and those of Duncan Lewis; and said that training and procedures had been put in place to ensure such failings did not occur again. Mr Hossain said to the court that he had learned from these failings and, annexed to his witness statement a training note produced for all solicitors working in public law at Duncan Lewis. 

The court said that “we accept these apologies and have concluded it is sufficient in this case for the court’s disapproval of what happened to be marked by this public judgment.” Since Duncan Lewis’s employees had accepted responsibility, apologised to the court and put in place training to avoid such failings in future cases, it was sufficient for the court’s disapproval of the matter to be marked by its public judgment. 

Comment

The Hamid jurisdiction is very important and the present case is a reminder that it is of the utmost importance that limited resources are not abused and the court was clear that abuse will not be tolerated. Equally, the conduct in question was extremely poor because the solicitors were purporting to act without instructions and they could not act without instructions. I do not know Mr Toufique Hossain, Duncan Lewis or Ms Harrison QC but what I do know is that a lot of GLD representatives in the immigration litigation team are serial offenders when it comes to poor conduct in immigration judicial reviews and they should also be put under the spotlight, to create a level playing field, when it comes to the Hamid jurisdiction. By wisely apologising and ensuring that procedures to rectify earlier failings had been but in place, Mr Toufique Hossain and Duncan Lewis seem to have been very lucky to escape the full wrath of the court which did not report them to the Solicitors Regulatory Authority and only expressed its disapproval of what happened by naming and shaming them in its public judgment. Of course, conditions in the Penally asylum seekers’ camp – said to be the “worst thing since Syria” – are extremely poor and it has become a flashpoint for conflict between extremists and pro-refugee groups.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Access to Justice, Article 5, Asylum, Conduct/Character, CPR, Disclosure, Hamid, Judicial Review and tagged , , , , , . Bookmark the permalink.

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