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
		15 January 2013

1. THE DEPUTY JUDGE (DAVID ELVIN QC):

I am satisfied that although there was undoubtedly some confusion caused in this case -- no doubt as a result of the change of solicitors – a consent order had been agreed between the parties following the grant of permission on the renewal application by Mr John Bowers QC (sitting at a Deputy Judge) on 16 May. I am told that BD Law Associates, who were originally acting for the claimant, ceased to exist and their files were handed over to Consilium, the new solicitors. The consent order was signed by Consilium as well as the Treasury Solicitor on 19 June 2012. The consent order was submitted to, but rejected by, the Court Office under cover of a letter of 16 July, firstly, because Consilium were not the solicitors on the record for the Claimant and, secondly, because the continuation fee had not been paid.

Those matters were clearly within the knowledge of Consilium Solicitors because on 31 July the court file shows that the continuation fee was paid, and I have seen a letter from them on that same date enclosing the notice of change of solicitor. It was confirmed by counsel that they had a copy of the consent order at the time. Indeed, on 3 August 2012 Consilium Solicitors submitted the further representations to the Secretary of State on behalf of the Claimant which had been envisaged by the agreed terms of the order and even though it had not been sealed by the court. It cannot therefore be said that Consilium Solicitors were unaware of the substance of, or the existence of, the consent order and sought to rely on it. Their failure to draw these matters either to the Treasury Solicitor's or the court's attention and to ask the court to seal the consent order following the notice of change and the payment of the continuation fee has led to this case being listed unnecessarily for trial today. No explanation was given why the consent order and the proceedings could not have been dealt with speedily on paper after 31 July 2012.

At my instigation yesterday the Treasury Solicitor was contacted because it became evident that the Defendant was not aware of the listing. The papers had been sent to them by the Claimant without covering letter a week or so ago but it was not explained what they were, there had been no correspondence with the Treasury to try and agree a bundle. Confusingly, the bundle is headed "application for renewal of permission for judicial review", when of course this was listed as a substantive hearing, permission having already been granted.

This case has wasted the time of the court and further costs have been incurred by all parties. I am very grateful that at very short notice Mr Thomann attended on behalf of the Secretary of State in order to explain the position. I am satisfied that had Consilium and the Claimant acted with common sense and dispatch the consent order could have been sealed last year. This gave the Claimant the benefit of assuring to him a right of appeal in-country -- which he would not have received had the judicial review been successful. The best the Claimant would have obtained with the judicial review is a redetermination of his case possibly and quashing of the removal directions, which were in any event ineffective as a result of the injunction which had been granted by the court.

I am therefore satisfied that the costs of today should not have been reasonably incurred and I shall summarily assess them.

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2. THE DEPUTY JUDGE: Mr Thomann, what do you want?
3. MR THOMANN: My instructing solicitor estimates that the time that he has spent and that Mrs Smith has spent is in the region of four and a half hours at £160 per hour, and an hour and a half at £250 rate for Mrs Smith --
4. THE DEPUTY JUDGE: Sorry, say that again.
5. MR THOMANN: An hour and a half at a rate of £250 an hour for Mrs Smith. And for me, just over an hour and I am £100 an hour.
6. THE DEPUTY JUDGE: That comes to just over £1,000. Do you have anything to say about the sum?
7. MR MUSTAKIM: My Lord, what I would say for the two individuals who have been working on this case is it would appear slightly on the upper scale of time, and perhaps the amount that has been spent, is it necessary to have two people?
8. THE DEPUTY JUDGE: Mr Mustakim, I make myself quite clear on this: the reason that they spent the time is because the court asked them to spend the time - because I did not know what was going on and I was seeking to discover what the Treasury was doing and how these circumstances had come about. Mrs Smith's time was engaged because I called her in order to find out what was happening and she specifically dug out and sent, and your solicitors were copied in, an email with a copy of what she could find on the file. So the time has been expended at the court's request, entirely reasonably in order to understand what was not apparent from the papers.
9. MR MUSTAKIM: I am grateful.
10. THE DEPUTY JUDGE: I will round the figure. I will summarily assess the costs to be paid by the claimant to the defendant in the sum of £1,000. If you could put that into the draft of the consent order that you are going to make. Whether or not, Mr Mustakim, your solicitors think it is proper to charge your clients for that £1,000 I leave to them and their consciences. Thank you both very much.