Scottish Court of Session Decisions

[1] The petitioner entered the United Kingdom illegally on 10 April 1993. He applied for political asylum on 27 April 1993. In March 1995 proceedings for his removal were initiated. His application for asylum was refused on 17 December 1996. His appeals against that decision were refused on 25 April and 8 December 1997. In the meantime on 28 June 1995 he married a United Kingdom citizen and on 25 June 1996 applied to remain in the United Kingdom as her spouse. There are now two children of that union born on 12 July 1996 and 26 July 1997 respectively. The application to remain was refused in January 1998 and directions for the petitioner's removal were made on 26 March 1998.

[2] The elder child known as Daymien Sim is handicapped in a number of respects. The present petition and an earlier one challenge the respondent's decision to refuse the petitioner's application to remain in the United Kingdom as the spouse of a United Kingdom citizen. I have not seen the first petition but was advised that it is in almost identical terms to the present one. Both therefore found largely on the elder child's disability and needs.

[3] The first petition was raised on 21 April 1998. Thereafter it was sisted pending the outcome of an application by the petitioner for legal aid. On 1 February 1999 the respondents were advised that that application had been refused. Thereafter they wrote several times to the petitioner's agent but got no reply. Around the end of July 1999 there was some question of the petitioner's agents withdrawing but that was apparently quickly resolved. No further steps were taken in the petition. The petitioner did not oppose the respondent's motion to dismiss the motion for want of insistence, which was granted on 30 November 1999.

[4] When the present petition was raised on 29 February 2000 Lord MacLean was reluctant to pronounce a first order and continued consideration of the motion therefor for two weeks to allow the petitioner to produce prima facie evidence of the medical condition of the child. On production of such prima facie evidence Lord MacLean was persuaded on 4 March 2000 to pronounce a first order, but in doing so made it clear that he expected both the petitioner's application for legal aid and the petition to be progressed expeditiously. In the event no progress was made in relation to either before the present motion to dismiss the petition for want of insistence was first heard by me on 15 August 2000.

[5] In support of the motion the respondent noted on the motion sheet:

In marking opposition the petitioner's agent noted:

That is not an accurate statement of the position. In fact, after the application was returned on 29 March 2000, it was resubmitted and again returned on 23 June for want of a statement of earnings from the applicant's employers. The difficulty in obtaining a statement of earnings was quite simply that the local agent acting for the petitioner failed throughout to give him an earnings form for completion.

[6] Mr Bell for the petitioner described the history of events as "this sorry background". He explained that it was the fault of the local agent, Mr Deb, that no progress had been made. However, a legal aid application form with the necessary earnings statement was now in the hands of the Edinburgh correspondents acting ready to be hand delivered that day to the Scottish Legal Aid Board. Because there was a prima facie case and progress had been made immediately upon intimation of the motion I should refuse it in the interests of justice. Mr Bell, through no fault of his own I am sure, was unable to tell me whether his client was aware of the current predicament of his petition and the background to that.

[7] I established from Miss Drummond for the respondent that, were the petition to be dismissed and a further petition raised, the respondent would not oppose the granting of a first order if it appeared that professional and responsible steps were being taken to have that petition dealt with expeditiously, for example if the lodging of the petition were accompanied by evidence that a legal aid application had been lodged with the Scottish Legal Aid Board with a request that it should be considered urgently and the petition contained like the present one a prima facie issue to try.

[8] It is difficult to imagine a clearer case of failure to progress an application. Failure to take any material step beyond presenting the petition was plainly demonstrated in relation to successive petitions. The explanation tendered was unsatisfactory. Indeed it did not amount to an explanation. It contained no indication of any steps whatsoever being taken to have the petitioner's prima facie anxious case dealt with. It has been my experience in practice and on the Bench that cases which are not properly dealt with procedurally tend to continue to be bedevilled by problems which cause further delay. In my opinion the best course, if it is available, is to draw a line under the blighted cause and make a fresh start. I was presented with circumstances in which a fresh start could readily be made with the petitioner's case untrammelled by the history of procedure. The petition could be quickly redrafted. All the paper work was to hand to submit a legal aid application. There was as far as I could tell no reason why the fresh cause should not be on the stocks immediately. I accordingly considered that the appropriate course was to dismiss the petition for want of insistence.

[9] Having indicated that I was minded to grant the motion to dismiss, I continued the matter for 48 hours to enable those acting for the petitioner to provide information in relation to expenses which I deal with below. However even on 17 August I was not able to establish whether the petitioner himself had been advised of the circumstances. I considered that one incidental benefit of dismissing the petition would be to alert the petitioner to the unprofessional and incompetent way in which his very important case was being handled by his solicitor. Since legal aid was involved I assumed that there were no financial reasons why the petitioner might feel bound to continue to instruct Mr Deb. It was in my opinion in the petitioner's interests to consider carefully whether he should instruct other solicitors for the fresh petition. There was on the face of it no reason why the existing Edinburgh agents and counsel should not continue to act. A copy of the existing petition would in any event be available to any newly instructed solicitor as would the documentation necessary for a legal aid application. I was accordingly satisfied that it was positively in the interests of the petitioner that this petition should be dismissed.

[10] That was particularly so since there would be no adverse financial consequences for him as a result. I had continued consideration of the motion until 17 August to enable inquiries to be made whether the defaulting solicitor was prepared to meet the respondent's expenses, which both counsel estimated to be between £1500 and £2000. On 17 August Mr Bell advised me that Mr Deb had orally intimated that he would meet the expenses. That was accepted by Miss Drummond. Counsel had discussed a period for payment and had 14 days in mind. That that sort of liability can arise in respect of a case where absolutely no progress has been made gives a very disturbing warning of the expense incompetence on the part of a solicitor is capable of causing to his client on top of the emotional, mental and financial damage that may be caused to the client by the resultant failure of his cause.

[11] I suggested to Mr Bell that he might give consideration to whether he should give advice to his client that made it clear to him that he could chose to instruct other agents.

[12] I note from the terms of the reclaiming motion intimated to me on 30 August that the petitioner is now detained. Had the petitioner raised a fresh petition on 17 August and the circumstances had indicated professional and responsible progress was likely to be made towards having it heard, then I doubt very much that he would now be in custody.