England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(Mr Justice Scott Baker)

		Royal Courts of Justice Strand London WC2 Wednesday 7 November 2001

Wednesday 7 November 2001

1. LORD JUSTICE KEENE: This is a renewed application for permission to appeal against a decision of Scott Baker J dated 18 June 2001, whereby the court dismissed an application for judicial review of a decision of a special adjudicator.

2. The applicant is a citizen of Lithuania, now aged 24. He arrived in the United Kingdom on 20 June 1998 and claimed asylum, initially as a dependent of his wife and subsequently in his own right. His claim was based on alleged persecution by the Lithuanian authorities because of his membership of the Communist Party. It was, however, refused by the Secretary of State.
3. When his appeal came on for hearing by the special adjudicator on 22 May 2000 his counsel sought an adjournment based on the medical condition of the applicant. There was a medical certificate produced to the adjudicator from the Mumtaz Medical Centre in London W11 signed by Dr Jayatillake. The conditions for which the applicant was receiving medication were described as migraine, uncontrolled epilepsy, insomnia and severe depression. It was said that he was recovering from injuries that he had sustained secondary to an epileptic fit on 12 May and that he was waiting to see a consultant neurologist at Whipps Cross Hospital at London E11 and, as a result of all this, that he was unwell and unfit to attend the hearing on 22 May. The letter from the medical centre went on to say that his fitness would be reviewed to two months' time. There was also a fax from his solicitor saying that Whipps Cross was unable to locate records in respect of the applicant because of the recent nature of the referral.
4. The special adjudicator granted an adjournment until 6 June 2000. He indicated that he was doing so so that medical evidence of the applicant's attendance at Whipps Cross Hospital or further medical evidence generally could be produced, in default of which he would determine the appeal under the provisions of rule 33 paragraph 2 of the Asylum Appeals Procedure Rules 1996. That permits an adjudicator to hear a case in the absence of any party if he is satisfied that sufficient notice of the time and place of the hearing has been given to the party.
5. In the event nothing further of any significance was forthcoming by 6 June 2000. There was a letter dated 5 June from the applicant's solicitors enclosing an undated compliments slip from Whipps Cross Hospital confirming that he was waiting for an outpatient appointment. But that was all. It appears, so we have been told, that no one attended on his behalf on 6 June 2000 at the adjourned hearing. The special adjudicator did indeed proceed to do what he said he would, namely to determine the appeal on the basis of the documents before him. He noted that the applicant, who lived in Walthamstow, East London, had consulted a general practitioner on the other side of London in W11; that the slip from Whipps Cross did not say that he was unfit to attend court or when the appointment there would be; and that in his view there was insufficient medical evidence to show that the applicant was unfit to attend the hearing on that day, 6 June. He therefore declined to adjourn the matter further and dealt with the matter in the absence of the applicant under rule 33.
6. The application for judicial review came on before Scott Baker J a year later, on 14 June 2001. There was before him a statement from Mr Trunca's solicitor, dated 25 August 2000. That revealed that some time shortly after 13 June 2000 the solicitor had received a formal appointment letter from Whipps Cross Hospital giving a date to attend there. What the statement also indicated was that the applicant had attended his solicitor's office in Wardour Street W1 on 17 May, 19 May and 2 June. There were also other documents dealing with the appointments at Whipps Cross. As the judge below pointed out, none of the new material dealt with the question which was crucial to the issue of adjournment, namely whether the claimant was fit to attend the hearing before the special adjudicator either on 22 May or on 6 June. The judge emphasised the special adjudicator's discretion as to whether to grant a further adjournment and went on to say that, even if the applicant had not been able to get evidence of attendance at Whipps Cross Hospital, he could have produced further medical evidence for the hearing on 6 June to show how it was that he could attend his solicitor's office but not the hearing. The judge concluded that the adjudicator's decision was unassailable. He then considered the new evidence which was put before him, but he took the view that that did not show that the applicant could not have attended and participated in the hearing on 6 June. The special adjudicator had the applicant's case spelt out in the documents before him, including a detailed interview, and in the event it seemed to the judge that there was no legal flaw in the adjudicator's decision. It followed that he dismissed the application for judicial review.
7. It is now sought to challenge that decision. On the applicant's behalf, Mr Jacobs this morning has submitted that the special adjudicator should have raised his concerns about the medical evidence at the hearing on 22 May, indicating, for example, why the evidence was not seen as adequate at that time. In the alternative it is argued that the letter from the Mumtaz Medical Centre of 12 May should have been sufficient by itself to warrant an adjournment. Finally, it is said that the applicant did all that he could do by 6 June in producing the slip from Whipps Cross Hospital with the contents to which I have already referred.
8. The problem, it seems to me, about these submissions is, first of all, that it must have been tolerably clear from what happened at the hearing on 22 May what the special adjudicator was concerned about. The letter from the general practitioner of 12 May, while it indicated that the applicant was unfit to attend on 22nd, gave no indication as to how long the applicant would be so unfit. It is reasonably obvious (one would think) that if an adjournment is required on medical grounds there needs also to be some evidence about how long an adjournment is being sought and the medical evidence clearly needs to address that topic. In addition, it must also have been obvious (one would have thought) that there was a query as to why the applicant had been able to attend the Medical Centre in West London and yet was unfit to attend the hearing. But in any event, if the applicant or those acting for him had been in any way unsure as to what further medical evidence was needed or what the object of this exercise was prior to the hearing on 6 June, they could very easily have sought clarification from the adjudicator. They did not do so, and the only conclusion one can draw from that is that they did understand what was wanted. Moreover they had the opportunity to attend on 6 June at that hearing to make further representations if they had chosen to do so, but in the end they decided not.
9. I for my part can see nothing wrong with the special adjudicator's decision in the circumstances of this case, nor with the conclusion arrived at by Scott-Baker J. The adjudicator was entitled to take into account all the circumstances of this matter, including the state of the medical evidence and the evidence about the attendance in West London from the applicant's home in East London, and I cannot see that he exercised his discretion in any way improperly. Nothing in Scott Baker J's decision seems to me to warrant any appeal to this court. There is no real prospect of success and I would refuse this renewed application.
10. LORD JUSTICE THORPE: I agree.

ORDER: Application refused. Public funding assessment of the applicant's costs.

(Order not part of approved judgment)