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 HIGH COURT
IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		24 March 2003

1. LORD PHILLIPS, MR: This matter has been brought before the court at our request. Mr Williams of counsel has appeared to assist us.
2. The circumstances are that a renewed application for permission to appeal was listed for hearing at 10 o'clock last Monday, 10 March 2003, before Lord Justice Sedley. Apart from setting aside half an hour for the hearing, Lord Justice Sedley had spent two hours reading and considering the papers during course of the weekend. Under modern procedure, before any hearing takes place in the Court of Appeal, the judge, or judges involved will have given detailed consideration to the papers. The time allocated for any hearing reflects this practice. In particular, time spent preparing for an application for permission to appeal will almost always be much longer than the time allotted for the hearing. On this occasion, the Court of Appeal Office was informed less than half an hour before the hearing that the renewed application was withdrawn.
3. The matter has been listed before us in order that we might investigate how it came about that the matter was withdrawn so late and also investigate whether this should have any impact on the costs recoverable by those acting for the applicant from the Legal Services Commission.
4. The material facts have been made clear in correspondence, witness statements and by the submissions made by Mr Williams. The applicant, Mr Tasyurdu, arrived in this country in 2000 from Turkey. He applied for asylum and his application was refused by the Secretary of State in March 2001. He appealed against his decision. That appeal was heard by an Adjudicator in July 2001 and dismissed.
5. At about this stage his present solicitors, Wilson and Co, and his counsel, Mr Haywood, were instructed. The Immigration Appeal Tribunal initially refused permission to appeal but, following a successful application for permission to apply for judicial review at which Mr Haywood appeared, the matter returned for further consideration by the Tribunal. Leave to appeal was granted. Mr Haywood was not available to appear at the hearing of the appeal and the appeal was dismissed. Mr Haywood was subsequently instructed to prepare grounds of appeal to this court, initially by way of an application for permission from the Tribunal, and subsequently by a direct application to this court. Legal aid was obtained from the Legal Services Commission up to, but not beyond, the paper application. That application was refused by Lord Justice Sedley on 14 February 2003 for these reasons:

"This is an endeavour to reargue facts which have already been evaluated by the adjudicator and the IAT, each time in a cogently reasoned decision.

The important fact was that [the applicant's] experience of torture was in 1994 and was brought about by his father's activities rather than his own. If his lie about his whereabouts had not been exposed, he would also have had to deal with the authorities' lack of interest in him for the following 6 years. As it was, there was little except the in-country material to go on. From it the IAA has concluded not that PKK suspects are not at risk of torture but that [the applicant] is most unlikely to be regarded as a PKK subject. As a draft evader he has no discrete asylum entitlement."

6. Following the paper refusal, Mr Haywood discussed the position with Miss Anne-Marie Tootell of Wilson and Co. The provisional decision was taken to renew the application orally, but Mr Haywood indicated that he would wish to give the papers more detailed consideration before renewing that oral application. Having done so, Mr Haywood and Miss Tootell concluded that the prospects of success were not sufficiently high to justify a request for further public funding. On 27 February 2003, Miss Tootell informed the Legal Services Commission of this fact.
7. The adverse decision, however, had serious implications for Mr Tasyurdu, who had established a family in this country. Mr Haywood indicated that he was prepared to pursue the application on a pro bono basis. On that basis further consideration was given to pursuing the oral application. However that consideration led Mr Haywood and Miss Tootell to conclude that there was no realistic prospect of success. On Tuesday 4 March, it was decided that the application should be withdrawn.
8. At this point Miss Tootell appears to have been under the misapprehension that it was necessary to obtain the consent of the Treasury Solicitor to withdraw the application. That is not the position as the application was a without notice application. Miss Tootell drew up a consent order which she sent to the Treasury solicitor on the same day marked "Urgent". Miss Tootell has accepted that she should at this stage have notified the court that the application would not proceed. That she failed to do so she has described as a "dreadful oversight" which she sincerely regrets.
9. The oversight was facilitated by the fact that she was away from the office on 5 March 2003 on a training commitment, and was not working in the office on Thursday afternoon or Friday due to childcare commitments. It was only on Saturday evening, 8 March 2003, when she was spending the weekend in Kent, that suddenly realised she had failed to notify the court.
10. Miss Tootell rushed back to London on Sunday morning to try to rectify the situation. She sent a fax to the Civil Appeals Office explaining the situation and apologising for the delay. Early on the Monday morning she telephoned the Treasury Solicitor to obtain consent, albeit unnecessary, to withdraw the application and notified the Appeal Office on Monday morning that the application would not be proceeding. Miss Tootell has tendered her apologies to the court, profusely, urging that this was a one-off oversight which was not in any way typical of the care with which she normally tends to her professional duties. She also confirms there were no costs implications so far as the delay is concerned, as the Legal Services Commission is not liable for any costs after the refusal of the paper application.
11. Miss Tootell's senior partner, Mr Hanley, has also written to the court emphasising that she is an extremely conscientious solicitor and, to his knowledge, this is the first occasion that she has overlooked a deadline in the course of her practice. He further urges that the immigration team in his firm is a very experienced team and that, so far as the team is concerned, this is the first time an oversight of this nature has occurred. He urges the court to accept that it was a one-off oversight. He says "with the best will in the world we are all fallible, and that human error occurs".
12. I would accept, without reservation, Miss Tootell's apologies and those of the senior partner of the firm. I accept that this was a one-off oversight of a very competent and conscientious solicitor.
13. The case does, however, give me the opportunity to emphasise that CPR 1.3 places a duty on the parties and their legal advisers to help the court to achieve the overriding objective of civil procedure, which includes the appropriate use of the court's resources. It frustrates that objective if the court is not informed as soon as it is known that a matter listed for hearing will not be effective. Solicitors, and when appropriate counsel, have a duty to see that the Civil Appeals Office is informed that the matter will not proceed as soon as this is known. Indeed, when it is known that a fixture may not proceed, it is helpful if the office can be informed of this. Such information will be treated as given on a without prejudice basis, that is to say the listing will not be altered until it is confirmed that the application or appeal will be withdrawn.
14. Even if a case settles very late in the day steps should be taken via the Royal Courts of Justice switchboard to notify in advance the clerks of the judge's concerned; there is nothing more infuriating than spending the weekend preparing Monday's case only to be told that it had settled late on Friday.
15. LORD JUSTICE SEDLEY: I entirely associate with what my Lord has said. Perhaps I should add that my other concern was that the proposed costs order for a public funding assessment appeared to be capable of covering costs up to the moment of withdrawal. It is only now that this has turned out to be a false alarm and that the costs would not have gone beyond the moment of the decision to withdraw. It would be helpful in such circumstances if this became known to the judge who is asked to make the order so that he can be assured that nothing further is being sought by way of costs.