England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		16th November 2004

1. MR JUSTICE BENNETT: This is an application made by the Secretary of State for the Home Department for a Wasted Costs Order against Hoole and Co who acted for Mrs Latchman in judicial review proceedings. Miss Broadfoot, who appears for the Secretary of State, has most helpfully constructed a chronology from which I will take the facts in this case, as there has really been no challenge to them.
2. In August 2001 the claimant, a Jamaican citizen, entered the United Kingdom as a visitor. She was granted one month leave to enter which was subsequently extended to six months. That leave expired in March 2002. The claimant did not leave the United Kingdom but remained as an overstayer and did nothing to regularise her immigration status.
3. On 2nd June 2004 she was arrested on suspicion of having committed immigration offences. She was served with the relevant form telling her she was liable to detention and removal. She was then released on temporary admission. On 9th June she was redetained and served with removal directions, that is to say for her to be removed to Jamaica two days later on 11th June. This alarmed the claimant because she was then in the middle of her exams.
4. So on the evening of 10th June Hoole and Co, acting on her behalf, made representations to the United Kingdom Immigration Service for her removal to be deferred until after her exams had finished on 16th June. It is said that a satisfactory response was not forthcoming from the Immigration Service. Accordingly an out of hours application was made to Gage J, as he then was, for an order that the Secretary of State be restrained from removing the applicant from the United Kingdom until after the determination of the application for permission to apply for judicial review, or further order. That application was granted.
5. Accordingly she was not removed and I am told was able to sit all her exams which concluded on 16th June. It was quite apparent to the claimant that it would be detrimental to her to be involuntarily removed from the United Kingdom and thus part of the reason for her actions was that she should be given time within which to make a voluntary departure in order that any subsequent entry clearance application would not be prejudiced by a prior removal.
6. On 18th June, that is two days after her exams were completed, the claimant lodged an application for judicial review seeking to quash the removal directions issued on 9th June, but they were by then no longer extant as they had been cancelled. It was further alleged that the decision on 9th June had breached Article 3 of the Europe Convention on Human Rights in the way in which she was treated when arrested on 9th June.
7. On 6th July the Secretary of State filed an acknowledgment of service in which it was rightly said that there was no legal impairment whatsoever to the claimant's removal. It was denied that her treatment in detention gave rise to any arguable breach of Article 5 of the European Convention. On 23rd July Sir Richard Tucker granted permission for the application to proceed. He made no observations, save for a direction that the matter be listed as soon as possible. On 29th July the Treasury Solicitor, acting for the Secretary of State, wrote a letter which said inter alia as follows: "

"As you are aware your client has been released on temporary admission with reporting conditions. I would be grateful if you could confirm that Miss Latchman has been complying with her conditions.

I further understand that your client's examinations were scheduled to finish on 16 June 2004. Could you please confirm that your client's exams had indeed finished.

I note that in both your letter dated 11 June 2004 as well as your grounds to this application, you indicated that your client would now like to voluntarily depart the United Kingdom in order to seek entry clearance in Jamaica. Indeed it would appear that the central complaint made in this application is that your client was unable to voluntarily depart as she was detained and my client had issued removal directions.

As the removal directions have now been cancelled and your client has been released on temporary admission, I would be grateful if you could confirm whether or not Miss Latchman has made the appropriate arrangements to voluntarily depart the United Kingdom, including any documentary evidence indicating relevant dates and times."

No reply was received to that letter. On 11th August the Treasury Solicitor wrote a chaser. No reply was received. On 25th August a further letter was written in which it said inter alia:

"Accordingly, I would be grateful if you would confirm the following

(i) It is no longer your intention to pursue this application for judicial review; and.

(ii) Your client would be making immediate arrangements to depart from this country.

If I do not hear from you within the next 7 days, ie that is by Wednesday 1 September 2004, I will assume that your instructions are to not proceed with this application and that your client has made no voluntary arrangements in which case removal directions will be set for her."

8. On 26th August 2004 Hoole and Co replied. Whether the letter was posted on 26th August is unknown, but what is clear is that it was not received by the Treasury Solicitor until 6th September because there is a date stamp to that effect on the letter. Between 26th August and 6th September a member of the Treasury Solicitor's staff received a telephone call from Hoole and Co which confirmed that the claimant would continue with the judicial review and was not planning to leave the United Kingdom. Once the letter of 26th August had arrived on 6th September it confirmed what had been orally said on 3rd September. I quote:

"I would inform you as follows:

(i) It is our intention to continue this application for judicial review; and

(ii) Miss Latchman will not be making immediate arrangements to depart from this country until after the outcome of the Court hearing."

9. Whether that letter was written on the instructions of the claimant I have been unable to discover. The letter could at least be commended for its honesty, but for the solicitors to say, in the circumstances, that it was the client's intention to pursue her application, and by that stage the application had become completely academic, was like waiving a red rag at a bull.
10. On 9th September 2004 the Treasury Solicitor replied to Hoole and Co. The last paragraph reads as follows:

"In the light of the fundamental change in your client's circumstances, I am also writing to put you on formal notice that the Secretary of State's view is that this application now constitutes an abuse of process since your client's remedy has already been granted. I would therefore invite your client to withdraw the same without delay. Should this application be pursued, the Secretary of State will consider seeking a wasted costs order against your firm."

No reply was received to that letter.

11. The hearing was listed for Monday, 11th October. On Thursday, 7th October the Treasury Solicitor's representative telephoned Hoole and Co who confirmed receipt of the Treasury Solicitor's letter of 9th September, to which I have just referred. Hoole and Co indicated, and I am reading from an attendance slip:

" . . .that in this case originally the Claimant sought to challenge removal directions on the basis that she wished to have voluntary detention. However Counsel's advice that he would like the matter to be heard before the Court as to whether or not the removal directions and the circumstances in which they were set amount to a breach of her human rights. She confirmed that they will be going ahead with the hearing on Monday."

12. There then took place a conversation between the Treasury Solicitor and Miss Samantha Broadfoot, counsel instructed on the Secretary of State's behalf. After that conversation the Treasury Solicitor received a further telephone message from Hoole and Co:

" . . . indicating that the Claimant would not be proceeding with Monday's hearing and [EM] should receive a fax withdrawing the application shortly."

13. On the morning of 8th October there came a fax from Hoole and Co withdrawing the application for judicial review. However, the Secretary of State did not consent to the matter being withdrawn on terms that each side paid their own costs because it was considered that this was a case whereby Hoole and Co should pay the costs of the Secretary of State.
14. Miss Broadfoot puts the Secretary of State's case very simply. The nub of the complaint is that the practicality of the judicial review application had fallen away, if not by 16th June certainly by the end of June or perhaps the end of July. She had finished her exams and she had some six weeks by the end of July to arrange to leave voluntarily to go to Jamaica so that she would not prejudice her subsequent application to be readmitted to the United Kingdom. It is thus said, in the circumstances which I have outlined, that the conduct of Hoole and Co was unreasonable (a) in pursuing the claim after it had clearly become academic after 1st August 2004, (b) in delaying any consideration on the merits of the litigation until October 2004 and (c) in failing to seek to withdraw until barely one clear day before the substantive hearing.
15. Miss Broadfoot drew my attention to a passage in the White Book at 48.7.3 and page 1213 of volume 1 which sets out the three stage test to be applied, namely:-

"(a) Had the legal representative of whom complaint was made acted improperly, unreasonably or negligently?

(b) If so, did such conduct cause the applicant to incur unnecessary costs?

(c) If so, was it, in all the circumstances, just to order the legal representative to compensate the applicant for the whole or part of the relevant costs?"

16. Miss Broadfoot confined her application to unreasonable conduct and at 48.7.4 in the volume 1 of the White Book there is this passage:

'Unreasonable' aptly described conduct which was vexatious, designed to harass the other side, rather than advance the resolution of the case, and it made no difference that the conduct was the product of excessive zeal and not improper motive."

17. Mr Hopewell, for the claimant, confirmed that he was counsel instructed on behalf of the claimant throughout the judicial review proceedings. He submitted that there was still a matter which was capable of argument on 11th October, namely whether or not there had been a breach of Article 3. I have to say I am not impressed by that argument. The real purpose of the judicial review application was to prevent an involuntarily removal of the claimant so that (a) she could finish her exams and (b) she could remove herself voluntarily to Jamaica so that any subsequent application to be readmitted would not be prejudiced by an involuntary removal.
18. He next submitted that it was not until 9th September that his solicitors were put on notice of a possible application for a Wasted Costs Order. During the course of his submissions Mr Hopewell produced to me and showed to Mrs Broadfoot a clip of correspondence sent to the claimant by her solicitors between 7th and 29th September. I should say that in the light of the House of Lord's decision in Medcalf v Mardell and Others (2003) 1 AC 2000 I asked Mr Hopewell whether or not his client had waived privilege, to which I got the rather curious answer that he was not aware whether his client had waived privilege or not. However that did not prevent him, or his solicitors, putting in front of me this clip of correspondence, and I suppose to that extent privilege has been waived. The letters are dated the 7th, the 10th, the 16th, the 24th, and 29th September 2004. Each of them asks the claimant to get in touch with them as a matter of urgency so that an appointment can be made for the claimant to come and see Hoole and Co to discuss the merits of the case.
19. On 24th September, since there had been no reply either in writing or orally to any of those letters, a further letter was written to the claimant in which it was said that an appointment had been made for her at 3pm on 29th September and she was urged to keep that appointment. The claimant did not keep that appointment and so on 29th September Hoole and Co wrote to the claimant:

"I have to make it clear that unless you make contact with my office within the next 7 days I shall have no alternative but to withdraw representation and take steps to close your file."

20. I specifically asked Mr Hopewell, during the course of his submissions to me, what happened after 29th September. I was told by him, on express instructions from a representative of Hoole and Co who sat behind him, that nothing further was heard orally or in writing from the claimant after 29th September and thus the decision had to be taken by the legal representatives in the absence of any instructions from their client. Thus on 7th October there was communicated to the Treasury Solicitor the decision taken by Hoole and Co that the proceedings should be withdrawn.
21. I cannot say, in the light of those circumstances, that the conduct of Hoole and Co has been unreasonable. It could be said that they should have started this earlier back in August and not written the rather aggressive letter on 25th August in the terms which I have set out. However, once the chips were down, after 9th September it is quite plain that Hoole and Co did make every effort possible to get in touch with their client and no doubt if they had come in they would have told her that the case was hopeless.
22. It is a pity, in my judgment, that Hoole and Co did not keep the Treasury Solicitor appraised of the fact that they were having the greatest difficulty getting in touch with their client and it might have put a different complexion on the matter had they done so. They have brought this application upon themselves. But I cannot say, in all the circumstances of this case, that Hoole and Co acted unreasonably. Therefore the application for wasted costs will be dismissed.
23. MR HOPEWELL: There is one final point: we are actually legally aided in this matter.
24. MR JUSTICE BENNETT: What order do you want me to make?
25. MR HOPEWELL: A legal aid order for detailed assessment.
26. MR JUSTICE BENNETT: The order will be no order as to costs save as to detailed assessment of the claimant's legal aid costs.
27. MISS BROADFOOT: There are other things: would your Lord dismiss the judicial review application and also discharge Gage J's order.
28. MR JUSTICE BENNETT: Yes, I do both of those. Thank you both for your help.