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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> DMM & Ors, R (On the Application Of) v Legal Services Commission & Ors [2010] EWHC 1896 (Admin) (30 June 2010)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/1896.html
Cite as: [2010] EWHC 1896 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
____________________
| THE QUEEN ON THE APPLICATION OF | ||
| (1) DMM | ||
| (2) SNX | ||
| (3) DNX | ||
| (4) KNX | ||
| (5) RNX | ||
| (6) CMX | ||
| (7) NWX | ||
| (8) ENX | Claimants | |
| v | ||
| (1) LEGAL SERVICES COMMISSION | ||
| (2) SECRETARY OF STATE FOR JUSTICE | ||
| (2) SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendants | |
| (1) CHILDREN'S COMMISSIONERS FOR ENGLAND | ||
| (2) IMMIGRATION LAW PRACTIONERS' ASSOCIATION | Intervenors | |
| ADMINISTRATORS OF REFUGEE MIGRANT STATUS | Interested Party |
____________________
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(Official Shorthand Writers to the Court)
Mr C Lewis QC and Mr P Nicholls (instructed by LSC, Legal and Governance Team and Treasury Solicitors) appeared on behalf of the 1st and 2nd Defendant
Mr C Sheldon (instructed by Treasury Solicitors) appeared on behalf of the 3rd Defendant
Ms H Mountfield QC and Mr S Knights (instructed by Bindmans) appeared on behalf of the 2nd Intervenor
Mr M Gill QC (instructed by Wilson Solicitors) appeared on behalf of the 1st Intervenor
Mr P Patel (instructed by Farrer & Co) appeared on behalf of the Interested Party
____________________
Crown Copyright ©
- MR JUSTICE MITTING: I decline to make an interim order against either of the first two defendants to this claim, or to adjourn the matter to a subsequent date for further consideration of the application for interim and urgent relief for reasons which I will briefly explain.
- These applications arise out of the administration of Refugee and Migrant Justice ("RMJ"), a well-known organisation in the immigration and asylum field, a charity, which, until it was put into administration, conducted about seven per cent of the immigration and asylum cases before tribunals and courts in England and Wales. It had either about 7,500 or as many as 12,000 active cases when it was put into administration. It had 12 or 13 offices. Clearly, its removal from this section of the legal market was bound to have a major impact upon the affairs of a large number of people, many of them vulnerable, whether by reason of what may have occurred to them in their home countries or by reason of their age (if children), or by reason of their disability (mental or physical). There must have been within their total number of clients a significant number of people who would find the loss of their services a very significant loss.
- When this claim was brought, by a claim form issued on 21 June, the decision sought to be challenged was the decision by the Legal Services Commission to serve notice to terminate the contract with RMJ with effect from 30 June 2010, and the failure to provide funding to RMJ to continue in operation and meet its liabilities after 23 June. The relief sought was, in effect, an order prohibiting termination of contract and requiring the LSC to continue to provide funding on an ongoing basis to RMJ.
- It is now accepted on all sides that that decision can no longer be challenged, and that, in the near to medium term, all business conducted by RMJ for clients is going to have to be transferred, if the clients are willing, to other legal service providers.
- RMJ was put into administration because it was unable to meet its obligations as they fell due: first to HMRC, where it is said to owe £500,000; and secondly and more pressingly, to its landlords. On the quarter day on 24 June, it would have been in a position where it was simply unable to pay the rent for the next quarter for its offices.
- In those circumstances, it is now accepted that the business of RMJ cannot be continued on an ongoing basis, and that its files and cases have to be transferred elsewhere. It is inevitable that in an administration of a business like that conducted by RMJ, there will be difficulties impacting in a significant way on individuals caused by the fact of administration and by the need to transfer their cases. It is inevitable that there will be cases in which had RMJ not been put into administration, the affairs of individual clients would have been better dealt with than they can now be. There would inevitably be decisions required to be taken which will not be taken within the very tight time-frames set for those who wish to challenge administrative decisions in this field, which can be as short as five days in the case of fast-track appeals, and even in ordinary appeals are as short as ten days.
- The claimants' position now is -- I say claimants; they are in effect acting as representatives for other claimants of RMJ -- that the LSC should be ordered by this court to provide funding to RMJ to enable it to remain open for business on a limited basis to give legal advice to those clients until their cases have been effectively transferred to other providers. The precise relief now sought is that I should order that the Legal Services Commission should authorise and pay RMJ to remain on record for cases not yet allocated to other providers, to carry out casework on those cases, to prepare a file transfer note on every one of the 7,500-12,000 files for the use of any subsequent provider, and to contact other providers in order to allocate cases to them.
- Mr Lewis QC, for the Legal Services Commission and the Secretary of State for Justice, objects to those proposals in principle. He submits that there are, in principle, two means of dealing with the situation created by the administration of RMJ: first, that it should be funded on a relatively open-ended basis to continue to do work of a kind which it has done before, and, if funded to do that work, with effectively no cap; and the other, which is that which is being put into effect by the Legal Services Commission, is to run off the business as fast as possible and to transfer the cases to other providers who are able to take them on.
- Before I could contemplate granting interim relief, I would have to be persuaded at least that there was an arguable case that the Legal Services Commission's choice of "model", as Mr Lewis puts it, was unlawful or irrational.
- I am satisfied that there can be no such argument. When a firm goes into administration with many clients, it is at the least a reasonable decision -- more likely the most reasonable decision that could be made -- that the sooner the affairs of those clients are transferred to active profitable businesses, interested in managing their affairs for the benefit of the new provider as well as for the client, the better. The more so when, as here, it is accepted that all but three of the offices of RMJ have been closed and cannot be reopened. RMJ had a staff of over 300. Under current arrangements that has been reduced or will be reduced at the close of play today to about 10 per cent, or 33. Even if that figure were to be doubled, it is obvious that the staff remaining would not be able to provide anything approaching the full service that RMJ were able to provide before it went into administration.
- The suggestion in the claimants' proposals that a file be prepared and that the cases be managed by lawyers as ongoing cases pending transfer demonstrates that the claimants' proposals are ultimately unworkable, or at the very least less workable than those proposed by the Legal Services Commission. For either or both of those steps to be taken, it would be necessary for somebody in one of the remaining three offices to retrieve and read into a file so as to take action upon it or to give advice upon it and to prepare a summary. Given the numbers involved, it is very likely that, in any individual case, the ongoing case work and the preparation of the file note would be done by somebody who had no prior knowledge of the case. That is a recipe for the giving of bad advice, for not taking steps appropriately and expeditiously, and for delay in transferring the cases over to new providers.
- I am satisfied that the LSC's judgment that the interests of clients, as well as the protection of the public purse (one of its obligations under section 5(7) of the Access to Justice Act) are best served by the rapid transfer of the files to new providers. To that end nothing must be done which in any way inhibits or delays that process. The steps suggested by the claimants would do precisely that.
- Accordingly, far from being irrational or unlawful, the Legal Services Commission's proposed and partly implemented means of dealing with the consequences of the administration seem to me to be the best practicable arrangement.
- There will be inevitably be difficulties of application. One such difficulty arises from the guidance given to alternative providers. On one reading of it, it is suggested that they should not take on non-urgent cases, and if they did, would do so at risk of not being funded to take them on. Mr Lewis explains, and I accept his explanation, that that advice was intended only to indicate to them that they should give priority to those cases which were urgent. As he has explained to me, the Legal Services Commission's intention is that within six weeks all cases formally conducted by RMJ should be transferred to new providers funded by the Commission. That proposal may or may not be capable of achievement within that time. It will require co-operation, not only with the administrators and the remaining staff of RMJ, which up to now appears to be forthcoming, but also with alternative providers.
- The fact that difficulties of that kind will inevitably arise and have already arisen does not mean that the Legal Services Commission's approach has been unlawful or irrational. All that it means is that to put into effect their rational scheme they must be alert to the need to co-operate with all of those whose assistance is going to be required to ensure that the 7,500-12,000 clients of RMJ are not put at avoidable disadvantage.
- For those reasons I refuse to grant interim relief or, as I have indicated, to adjourn it so that the application can be further pursued on another day.
- Mr Westgate, the next matter concerns the Home Secretary.
- MR JUSTICE MITTING: The claimants apply against the Home Secretary for a blanket prohibition on taking certain categories of adverse immigration decision against clients of RMJ who have not yet obtained alternative representation. The decisions are to remove, to detain for the purposes of effecting removal, to reject an application under paragraph 353 of the Immigration Rules, to serve an adverse decision of the First Tier and Upper Tribunals, to refuse leave to enter or leave to remain, or to take a decision under section 10 to remove, and to refuse asylum or humanitarian protection: in other words, virtually every category of immigration and asylum decision outside the points based system which could be taken in relation to an individual.
- What I have seen so far gives no ground for believing that such a blanket order is justified or necessary. The Legal Services Commission have negotiated with UKBA an effective standstill on interviews with unaccompanied minors. Guidance given by Lin Homer to senior UKBA officers acknowledges the difficulties likely to be created for individuals by the administration of RMJ, and while it does not suggest that a complete moratorium should be exercised, does indicate that each case should be approached individually, and, where certain factors exist, delay may be justified, without creating any presumption in favour of delay.
- It is clearly possible to envisage circumstances in which a decision to make an adverse immigration decision in the loose sense adopted by the claimants would, at least arguably, be an abuse of power. I take an example relied upon by Mr Gill QC for the Children's Commissioner. A decision to remove an unaccompanied child, apart from the fact that it would be contrary to the Secretary of State's own policy and challengeable on that ground, would also be unlawful, at least arguably, having regard to the Secretary of State's obligation to have regard to statutory guidance requiring her to treat the best interests of children as a primary consideration pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009. Hence, no doubt, the sensible pragmatic decision to defer interviewing unaccompanied minors for at least three weeks.
- I can conceive that either the interpretation of the advice by individual officers or administrative mishaps occurring on a significant scale might require the intervention of the court on a generic rather than an individual basis, but my anticipation is that that will not be so. In the case of adult individuals in respect of whom an immigration decision which is appealable under section 82 of the 2002 Act is taken, who thought that they might be advised by RMJ but who found themselves trapped by the short time limits for appealing, I would expect that the Tribunal would sympathetically consider an application to enlarge time and that the Secretary of State would, in a proper case, support that application, as she has done on occasion in the past.
- In the case of removal directions not amounting to appealable decisions, set in respect of former RMJ clients who had not yet been able to transfer representation to another provider, I would expect as a matter of routine that the Secretary of State would in the decision letter or document, or in a document accompanying it, draw to the attention of the individual and to any court or Tribunal who had ultimately to consider the matter the fact that he was a former client of RMJ and had not yet transferred his instructions elsewhere.
- In such ways and in individual cases unfairness could be avoided. That is the proper method of avoiding unfairness, and I have no reason to think that, in the general run of cases, it will not be conscientiously applied. If that proves to be wrong, however, I propose to preserve the opportunity to the claimants, as a representative of others effectively, to restore this application, and I do not propose therefore to dismiss it. I adjourn it for the reasons given.
- Does that deal with everybody's matters?
- MR WESTGATE: As far as I am concerned.
- MR JUSTICE MITTING: Thank you all.