England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		8th July 2015

This transcript has been prepared without the assistance of documents)
1. LADY JUSTICE GLOSTER: This is an application for permission to appeal in respect of a decision of the Upper Tribunal (Immigration and Asylum Chamber) to refuse permission to apply for judicial review dated 3rd July 2014. Permission was refused on the papers by Arden LJ on 14th January 2015.
2. The application was listed for hearing at 10 o'clock this morning and on 26th January 2015 Messrs Abbott & Co solicitors were sent a letter by the Civil Appeals Office informing them of this date and also stating that they would receive no further notice of that hearing date. On Friday 3rd July 2015 an e-mail was sent by a Miss Fateha Majid, who is apparently a case worker at Abbott & Co Solicitors, who are still on the record, in the following terms:

i. "(unchecked) We are writing in reference to the above named client's hearing on 8 July 2015. We kindly request for an adjournment for this hearing on the basis of non-availability of counsel. Counsel who was initially instructed in this case and had the conduct of this case from the start cannot, unfortunately, attend this hearing. Since the hearing is next week, and bearing in mind the short notice to find alternative suitable counsel for this particular case, we request for an adjournment in the best interests of our client. We have tried to liaise with the Treasury Solicitors but an agreement could not be reached. In these circumstances we kindly request for an adjournment and oblige."

3. On Monday 6th July the court office sent an e-mail to Miss Majid, stating the direction that I had given in relation to the application of the adjournment:

i. "The adjournment is refused. Non-availability of counsel is not a reason to delay this case. The application will stay listed on 8 July 2015."

4. That was sent at 11.57 on Monday 6th July. No response was received by the court to that e-mail.
5. When I arrived at court today at 10 o'clock on 8th July there was no appearance by counsel or solicitors who had previously been acting and no new counsel. Abbott & Co remained on the record and, apart from the indication in the e-mail, there had been no skeleton argument or advocate's statement filed beyond the very full skeleton argument and grounds of appeal which had been previously settled and signed by Dr Anton Van Dellen. The court and my clerk then communicated with counsel's clerk and the solicitors and the court was informed on the phone that the solicitors were without instructions. I then adjourned the matter at about 10.25 to come on at 1 o'clock today.
6. At 1 o'clock (although he had come down to the court earlier but the court's subsequent case had already begun) Dr Van Dellen appeared in front of me. I am grateful for his explanation and his attendance.
7. Contrary to the impression given in the e-mail from Abbott & Co dated 3rd July, the position is actually as follows, and this is according to Dr Van Dellen, whom I do not blame in any way for what has occurred today. The matter was still in his diary on 25th June and he contacted Abbott & Co, requesting a copy of the bundles in good time in case he needed to update his skeleton. The matter then came out of his diary on 29th June, but only today he was informed that the reason for the fact that it had come out of his diary was that his instructions had been withdrawn because the client wished to go and instruct different counsel from Doughty Street Chambers. As I said, Dr Van Dellen was only informed of that fact today when, in the light of my clerk's telephone conversation to him, he communicated with the solicitors. Dr Van Dellen appears today only acting on behalf of the solicitors who remain on the record.
8. During the course of the morning a further e-mail was sent to the Appeals Office, which reads as follows:

i. "(unchecked) We are writing further in this matter and we want to bring to the kind notice of this honourable court that we are acting solicitors on behalf of the appellant in his application for permission. Our client has instructed us to make an application for adjournment on 3rd July 2015, which we did. Unfortunately, after that we cannot get hold of the client and we are without instructions. We apologise that we could not get further instructions from the client as he is not responding. We are feeling professionally embarrassed and once again tendering our sincere apologies to the court for our inability to assist the court in time and for inadequate notice."

9. It is signed by Abbott solicitors, but the letter, which came by e-mail, does not indicate whether it is signed by a partner or someone else at the firm.
10. The position is that Dr Van Dellen is only instructed by Abbott & Co to come to the court and apologise and explain the position. As he told me, the reason for the adjournment was not the reason that had been set out in Abbott & Co's e-mail of 3rd July, which I have already quoted, but, on the contrary, the fact that, as Dr Van Dellen learnt this morning, the preferred counsel at Doughty Street Chambers was not available for the hearing today and that is why an application was made on 3rd July for an adjournment. If that was indeed the correct position, that new counsel were being instructed, or, which is certainly a possibility on the information I have been given, that the solicitors were without instructions, the court should have been told the truth, not some bodged explanation which was clearly inaccurate. Whether it was deliberately and knowingly inaccurate is something I will need to ascertain on a further occasion. It was clearly untrue, it was not on the basis of non-availability of original counsel, i.e. Dr Van Dellen, who appeared below, but on the wish of the client to change counsel and possibly, although it is not clear from the correspondence, the failure of the solicitor to get instructions from his client, which I suspect is also the case. Abbott & Co are still on the record, therefore they could have made an application through Dr Van Dellen, if they had chosen, for a further adjournment of this matter. They have not done so and Dr Van Dellen has made it quite clear that he is not making any such application.
11. In those circumstances I propose to dismiss this application for permission to appeal. I should say that I have read the papers in their entirety, including the skeleton arguments and the grounds of appeal and the judgments of the First Tier Tribunal and the Upper Tribunal. Obviously I have not heard further argument from Dr Van Dellen or any other counsel, but it appears to me that for the reasons that the Upper Tribunal Judge gave, as endorsed by Arden LJ when refusing permission to appeal, there are no real prospects of success. By the time the attempt was made to vary the application, the Secretary of State had made her decision and there was therefore no possibility of amending it, and that the application cannot survive the decision. I do not either consider that there was any real prospect of success on the Article 8 point.
12. In those circumstances, including in particular the fact that the solicitors are without instructions and there has been no attendance by the client or on behalf of the client today and no application for a further adjournment, I dismiss this application.
13. I also require a partner in Abbotts to appear before this court a week today, Wednesday 15th July, at a time which will be notified, by counsel if they wish, to explain to the court why the position was not explained to the court, why an apparently false explanation for the reason for the rewust for an adjournment was given in the correspondence and why nobody was here at 10 o'clock this morning to explain the position. From what I can see, and on the information before me, I do not regard the conduct of the solicitors to have been appropriate and I wish to consider whether I can impose an order for costs in relation to this application on the solicitors themselves. Obviously I would not do that without hearing from the solicitors in person or through counsel at the hearing which I have ordered. The solicitors will be informed of the timing of that hearing on 15th July.