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 WC2A 2LL
		4th October 2012

1. MR JUSTICE HADDON-CAVE: This was to be a challenge by the claimant, Edward Gassama, a national of Sierra Leone, of the decision of the defendant, the Secretary of State for the Home Department, dated 5 April 2011 granting him only 6 months' discretionary leave to remain rather than indefinite leave to remain.
2. The claimant was originally granted indefinite leave to remain, but was subsequently convicted in 2004 of wounding with intent when he stabbed a girlfriend with a knife several times in the face and in the groin and was sentenced to 5 years' imprisonment.
3. Following his conviction the Secretary of State for the Home Department made a deportation order against him. The claimant's application for revocation of the deportation order was refused by the defendant, but his application then succeeded on appeal. Subsequently, as I have said, the claimant was granted 6 months' discretionary leave to remain.
4. In the original grounds the claimant contended that the length of leave granted was inappropriately short and that the defendant should have either reinstated his indefinite leave to remain or granted him 3 years' discretionary leave to remain. That is how matters stood when this claim was lodged on 27 May 2011 in a claim form reference CO/4741/2011. The actual date of filing was 23 May 2011.
5. Neither the applicant nor his solicitors appear today. This morning I was handed a faxed letter from his solicitors, who are Prime Solicitors in Feltham. The faxed letter is dated 2 October 2012, but was not received by the Administrative Court office until 4 October 2012, ie today. The letter addressed to the Administrative Court office reads as follows:

"We refer to the above case listed for hearing on 4 October 2012. We write to withdraw from acting on behalf of the applicant in this matter. Our reason for the applicant is we do not have instructions to represent him for hearing. Should this position change we will notify you. Yours faithfully, Prime Solicitors."

6. Is it has now been drawn to my attention by Mr Singh of counsel (who appears for the SSHD) in his helpful written and oral submissions that this letter from Prime Solicitors withdrawing from this case is the first correspondence that has been received from them since January of this year. This is a matter of real concern.
7. In order put the matter in context it is necessary to rehearse some of the procedural background. The claimant issued these judicial review proceedings on 23 May 2011 challenging the legality of the defendant's decision dated 16 May 2011 in which the defendant maintained her decision dated 5 April to grant the claimant 6 months' discretionary leave in the United Kingdom.
8. The claimant was granted permission to apply for judicial review by Collins J on 14 September and who ordered that no steps were to be taken in the case pending the decision of the Administrative Court in a series of cases that were subsequently recorded as R(on the application of (1) Mayaya; (2) AO and (3) HE) v SSHD 2011 EWHC 3088 (Admin) ("Mayaya").
9. Collins J gave a number of case management directions on 14 September 2011. These included a direction that any reply by the claimant to the defendant's detailed grounds of defence and any application by the claimant to lodge further evidence was to be filed within 21 days of service of the defendant's detailed grounds of defence. Further, the claimant was ordered to file and serve a trial bundle not less than 4 weeks before the date of the hearing and to file and serve a skeleton argument not less than 21 days before the date of the hearing.
10. On 25 November 2011 the Administrative Court gave judgment in Mayaya. On 9 December 2011 the Treasury Solicitor wrote to the Administrative Court and submitted that the claimant ought to notify the court and the defendant whether he intended to pursue his claim in the light of Mayaya (which decision Mr Singh told me favoured the defendant in relation to issues apparently raised in the present case).
11. On 10 January 2011 the claimant's solicitors, Prime Solicitors, wrote to the Treasury Solicitor and indicated that the claimant intended to pursue his claim. Prime Solicitors purported to rely on the decision dated 9 December 2011 of the Administrative Court in R(Fitzroy George) v SSHD 2011 EWHC 3247 (Admin) ("Fitzroy George").
12. On 20 January 2011 the Treasury Solicitor wrote to Prime Solicitors and pointed out that the case of Fitzroy George in fact undermined the claimant's case. The Treasury Solicitor stated as follows:

"if your client intends to pursue his claim the proper course is for him to amend his grounds of review so that they reflect existing law. At the very least she they should specifically address existing authority that undermines his submissions. If he does not do so it will be a waste of the court's time and the defendant's costs to dispute a claim which so obviously lacks merit. This will be relevant to any consequential costs orders."

13. The Treasury Solicitor has heard nothing from Prime Solicitors since sending them the letter dated 20 January 2011 until the evening before last when they received their faxed copy of Prime Solicitors' letter withdrawing dated 2 October 2012.
14. On 14 March 2012 the claim was listed for a substantive hearing on 4 October 2012. This matter has, therefore, been fixed for nearly 7 months.
15. On 25 May 2012 the Treasury Solicitor wrote to the Administrative Court copying in Prime Solicitors and noted that the claimant had not responded to the Treasury Solicitor's letter dated 20 January 2012 and had not applied to amend his grounds of review to address Mayaya. The Treasury Solicitor stated that the defendant proposed filing her detailed grounds of defence on or before 4 July 2012, but that it was preferable for the claimant to serve any amended grounds of review prior to service of the detailed grounds of defence so that the defendant could address such amended grounds in her detailed grounds much defence. However, no amended grounds of review were served by the claimant or have been served.
16. One of the alternative remedies that the claimant sought in his judicial review was an order compelling the defendant to grant him 3 years' discretionary leave to remain instead of 6 months. This ground was in addition to his alternative ground seeking a reversion to his indefinite leave to remain.
17. On 7 August 2012 the Treasury Solicitors wrote to Prime Solicitors stating that:

"my client has instructed me that independently of these proceedings, on 8 February 2012 your client was granted discretionary leave to remain for a period of 3 years, expiring on 8 February 2015. This would render the claim academic. Would you please confirm whether your client intends to pursue his claim, notwithstanding the grant of leave, and if so on what basis."

This letter was copied to the Administrative Court (though it has not appeared in my file). There was no response from Prime Solicitors to that letter.

18. On 14 August 2012 the defendant's duly filed her detailed grounds of defence dated 8 August. This ran to 51-paragraphs of carefully and, if I may say so, cogently set out reasons why the claimant's claim to relief should be rejected, settled by Mr Singh of counsel on 8 August. In those detailed grounds of defence, Mr Singh submitted that the claimant's claim was without merit, both in light of the decisions of the Administrative Court in Mayaya and Fitzroy George and also in any event the claim was largely academic because the defendant had in fact granted the claimant 3 years' discretionary leave to remain on 8 February 2012. There was no response by the claimant or his solicitors to the defendant's detailed grounds of defence, either.
19. On 20 September 2012 the Treasury Solicitors again wrote to Prime Solicitors and referred to the Treasury Solicitors' previous letter to Prime Solicitors dated 7 August. The Treasury Solicitor stated as follows:

"in light of the fact that on 8 February your client was granted discretionary leave to remain for a period of 3 years, please confirm whether your client intends to pursue his claim, and if so on what basis. You will be aware that the grant of leave renders your client's judicial review claim academic. If your client does intend to pursue this claim, please serve a copy of your client's skeleton argument as a matter of priority. I note that this was due to be filed and served by Thursday 13 September."

This letter was also copied to the Administrative Court (but does in the appear in my file).

20. On 25 September 2012 the Treasury Solicitor wrote to the Administrative Court copying in Prime Solicitors and stated as follows:

"I refer to the court order by Collins J dated 14 September 2011. The case management directions stated that the claimant's skeleton argument should be filed and served not less than 21 days before the date of the substantive hearing, which was listed for 4 October 2012. To date the claimant's skeleton argument has not been served on the defendant nor have the claimant's solicitors responded to correspondence dated 7 October 2012 and 20 September 2012 asking for confirmation as to whether they intend to pursue this claim. As a result of the defendant is not currently in a position to file and serve her skeleton argument in response, but will do so when the claimant's skeleton has been served."

21. No skeleton argument was or has been served by the claimant or his solicitors. No trial bundle has been prepared by the claimant or his solicitors. What instead has happened is that the court has been left entirely in the dark by the claimant and his solicitors and the fixture for today has been left lying in the court's diary. In addition, the Secretary of State for the Home Department and the Treasury Solicitors and Mr Singh of counsel have been left in a position whereby they have had to continue to prepare the case on the assumption that the claimant would, or might, nevertheless appear at this hearing.
22. The position appears to be that at the very last moment the claimant's solicitors, Prime Solicitors, have seen fit simply to send in a faxed letter withdrawing from the case without more, without apology and without excuse.
23. There has been a complete disregard by the claimant and his legal representatives, Prime Solicitors, of both the directions given by Collins J on 14 September 2011 to which I have referred and to their duty to the court. It is remarkable that Prime Solicitors have failed to have any contact with the Treasury Solicitor or the court in the nine months leading to this case. It is remarkable that Prime Solicitors have thought fit to ignore a whole series of letters from Treasury Solicitors, sensible letters from the Treasury Solicitors, inquiring as to their client's intentions in relation to this hearing. It is remarkable that Prime Solicitors have thought fit to fax a letter at the 11th hour withdrawing without any explanation for their conduct or apology. It is remarkable that Prime Solicitors may think that this is conduct fitting of a solicitor of the Supreme Court. It is not. They have shown an utter disregard of their duties to the court, let alone their duties to their client.
24. The failure of Prime Solicitors, which I have outlined above, have resulted in a great deal of wasted time and costs, both on the part of the Treasury Solicitors and their counsel and in the Administrative Court office and this court, which has been preparing for this hearing.
25. Under CPR 44.14 this court has the power to order costs against a solicitor where the solicitor's conduct has been "unreasonable and/or improper." CPR 44.14 provides as follows:

"the court's power in relation to misconduct.

44.14(1) the court may make an order under this rule where -

(a) a party or his legal representative, in connection with a summary or detailed assessment, fails to comply with the rule, practice direction or court order; or -

(b) it appears to the court that the conduct of the party or its legal representative before, or during a proceedings which give rise to the assessment proceedings, was unreasonable or improper.

(2) where paragraph 1 applies, court may disallow all or any part of the costs which are being assessed or; order the party at fault or his legal representative to pay costs which he has caused any other party to incur.

(3) where -

(a) the court makes an order under paragraph 2 against a legal representative party; and -

(b) the party is not present when the order is made, the party's solicitors must notify its clients in writing of the order no later than 7 days after the solicitor has received notice of the order."

26. In the notes to 44.14 it is stated as follows:

"the provisions relating to misconduct now extend to the legal representative of the party as well as to the party personally. The provisions relate to both unreasonable or improper conduct both before or during the proceedings giving rise to the assessment proceedings and during the assessment proceedings themselves. The effect of this is that a costs judge may, of their own initiative, or at the request of a party investigate or make orders in respect of unreasonable or improper conduct by a party or a legal representative. This means that a legal representative found to have acted unreasonably or improperly may be ordered personally to pay costs which another party had been caused to incur. This power is in addition to the power to make wasted costs orders in accordance with section 51 of the Senior Courts Act 1981."

27. It seems to me that this is a paradigm case for the application of CPR 44.14. It is difficult to think of a more disgraceful dereliction of duty to the court than in the present case, where Prime Solicitors have simply sat on their hands and done absolutely nothing but allow this fixture to remain in everybody's diaries and preparations to be made by Treasury Solicitors and their counsel and the court.
28. In these circumstances I have no hesitation in making an order that the costs of the Treasury Solicitors and their counsel incurred from 20 January 2012 up to and including this hearing be paid personally by Prime Solicitors on an indemnity basis, to be assessed if not agreed. I will hear submissions on the last aspect in just a moment.
29. Whilst giving this judgment, I have been handed a faxed letter from the claimant to my Clerk saying that he is unable to attend court today because he has no one to represent him. He wishes to inform the judge that he wants an adjournment of the hearing because he could not come up with the money to instruct a solicitor. He is now in the process of looking for a legal aid solicitor to handle the case. The case is very important to him because of the impact it could have, which he thinks is unfair and irrational.
30. I refuse the claimant's application for an adjournment for the reasons given in Mr Singh's detailed grounds of defence dated 8 August 2012.
31. If and insofar as it is necessary, I make it clear that the claim is hereby dismissed with costs to be paid as I have ordered by Prime Solicitors.
32. I am keen that the Treasury Solicitors should not be out of their money, and counsel, for longer than is necessary so I will now hear submissions on any timetable.
33. MR SINGH: Yes, my Lord. I think that does leave costs prior to 20 January 2012.
34. MR JUSTICE HADDON-CAVE: Indeed it does.
35. MR SINGH: Because the claim has been dismissed I would ask the claimant to pay those costs.
36. MR JUSTICE HADDON-CAVE: Yes, thank you. Mr Singh, if you would kindly draw up a suitable order and send it to the associate. I also order that costs prior to 20 January 2012 be paid by the claimant to the defendant and on a standard basis to be assessed if not agreed. Would you like a timetable for the assessment? If there is a draft bill I can assess it now.
37. MR SINGH: Unfortunately, my Lord, we don't. My Lord, I think the first step would be to seek to agree the amount with both the claimant and Prime Solicitors.
38. MR JUSTICE HADDON-CAVE: Given the history of this case --
39. MR SINGH: That could be very difficult, yes. My Lord, if the costs cannot be agreed -- may I just turn my back on you for a moment?
40. MR JUSTICE HADDON-CAVE: Indeed, go ahead.
41. MR SINGH: My Lord, I think the detailed assessment procedure under the CPR will cover this, because if costs cannot be agreed by a certain time it would be open to the defendant to seek her costs by triggering that procedure, and I understand from my instructing solicitor that that is what happens normally. So no timetable is given.
42. MR JUSTICE HADDON-CAVE: Sure. If you would like me to lay down a vigorous timetable, given the history of this case I would be very happy to do so. I am entirely in your hands.
43. MR SINGH: My Lord, do you mind if I just check something?
44. MR JUSTICE HADDON-CAVE: Sure. Take your time.
45. MR SINGH: My Lord, we are satisfied that the procedure set out in CPR part 47 includes an adequate timetable.
46. MR JUSTICE HADDON-CAVE: Good.
47. MR SINGH: I won't be asking for anything.
48. MR JUSTICE HADDON-CAVE: The court only wishes to be of service.
49. MR SINGH: Thank you, my Lord.
50. MR JUSTICE HADDON-CAVE: Thank you very much, both of you, for your assistance. I am sorry that your journey has been almost wasted. The message should go out loud and clear that the court simply will not tolerate this sort of lax behaviour by claimants' solicitors.
51. MR SINGH: Yes, my Lord.
52. MR JUSTICE HADDON-CAVE: Refer to my judgment as often as you like. I am sorry I won't have the pleasure of combing through your excellent skeleton.