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Al-Mehdawi v Secretary of State for the Home Department
HOUSE OF LORDS
Hearing Date: 18, 19 OCTOBER, 23 NOVEMBER 1989
23 November 1989
Index Terms:
Natural justice -- Hearing -- Duty to hear parties etc -- Immigration adjudicator -- Applicant deprived of hearing through negligence of his own solicitors -- Adjudicator not at fault -- Whether breach of rules of natural justice -- Whether adjudicator's decision subject to judicial review.
Immigration -- Appeal -- Dismissal of appeal in absence of immigrant -- Remedy available to immigrant -- Reference of case to adjudicator by Secretary of State for further consideration -- Procedure -- Duty of adjudicator -- Immigration Act 1971, s 21.
Held:
The respondent was an Iraqi student who overstayed his leave to remain in the United Kingdom. When he was served with a notice of the Secretary of State's decision to deport him he instructed solicitors to lodge an appeal. When a hearing date for the appeal was fixed the solicitors wrote to notify him of the date but negligently sent the letter to his previous address and the respondent never received it. The adjudicator subsequently dismissed the appeal on the basis of the documents before him since neither the respondent nor his solicitors had appeared. When the solicitors received notice of the dismissal they again misaddressed the communication intended to inform the respondent of the result, so that by the time he knew of the dismissal of his appeal it was too late for him to appeal further against the adjudicator's decision. The respondent applied for, and was granted, certiorari to quash the adjudicator's decision, the judge holding that he was bound by a previous decision of the Court of Appeal which decided that certiorari ought to be granted where the negligence of the applicant's solicitors had deprived him of an oral hearing. The judge's decision was affirmed by the Court of Appeal. The Secretary of State appealed to the House of Lords. Held -- A party to a dispute who had been afforded an opportunity of presenting his case to the person deciding the dispute but who had lost the opportunity to have his case heard through the fault of the legal advisers to whom he had entrusted the conduct of the dispute on his behalf could not complain that he had been the victim of a procedural impropriety or that natural justice had been denied to him, and it made no difference whether the matter in dispute raised private law or public law issues. Accordingly, the respondent was not entitled to judicial review of the adjudicator's decision and the Secretary of State's appeal would therefore be allowed. R v West Sussex Quarter Sessions, ex p Albert & Maud Johnson Trust Ltd [1973] 3 All ER 289 applied. R v Leyland Magistrates, ex p Hawthorn [1979] 1 All ER 209 distinguished. R v Diggines, ex p Rahmani [1985] 1 All ER 1073 overruled. Per curiam. Where an immigrant has failed to attend the hearing of an appeal by an adjudicator and the appeal has been heard and dismissed in his absence he is not without remedy because the Secretary of State has a discretion under s 21(1) a of the Immigration Act 1971 at any time to refer for consideration any matter relating to the case which was not before the adjudicator. If such a reference is made, the adjudicator is required by s 21(2) to consider the matter which is the subject of the reference and to report his opinion to the Secretary of State. Accordingly, it is open to the Secretary of State, if persuaded that the merits of a case require it, to invite an adjudicator to hear oral evidence from an appellant whose appeal has, through no fault of his own, been dismissed in his absence, and to report his opinion whether that evidence would have affected the outcome of the appeal. Decision of the Court of Appeal sub nom R v Secretary of State for the Home Dept, ex p Al-Mehdawi [1989] 1 All ER 777 reversed.Notes:
For the principles of natural justice and the issue of certiorari for breach of those principles, see 1 Halsbury's Laws (4th edn) paras 64, 74, 80, 83, 87, and for cases on the subject, see 1(1) Digest (Reissue) 200--201, 1172--1176 and 16 ibid 388--435, 4237--4797. For the Immigration Act 1971, s 21, see 31 Halsbury's Statutes (4th edn) 74.Cases referred to in the Judgment:
Board of Education v Rice [1911] AC 179, [1911--13] All ER Rep 36, HL Colonial Bank of Australasia v Willan (1874) LR 5 PC 417. Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935, [1985] AC 374, [1984] 3 WLR 1174, HL. Ladd v Marshall [1954] 3 All ER 745, [1954] 1 WLR 1489, CA. O'Reilly v Mackman [1982] 3 All ER 1124, [1983] 2 AC 237, [1982] 3 WLR 1096, HL. R v Blundeston Prison Board of Visitors, ex p Fox-Taylor [1982] 1 All ER 646, DC. R v Bolton (1841) 1 QB 66, [1835--42] All ER Rep 71, 113 ER 1054. R v Diggines, ex p Rahmani [1985] 1 All ER 1073, [1985] QB 1109, [1985] 2 WLR 611, CA affd on other grounds [1986] 1 All ER 921, [1986] AC 475, [1986] 2 WLR 530, HL. R v Gillyard (1848) 12 QB 527, 116 ER 965. R v Leicester Recorder, ex p Wood [1947] 1 All ER 928, [1947] KB 726, DC. R v Leyland Magistrates, ex p Hawthorn [1979] 1 All ER 209, [1979] QB 283, [1979] 2 WLR 28, DC. R (Burns) v Tyrone County Court Judge [1961] IR 167, NI DC. R v West Sussex Quarter Sessions, ex p Albert & Maud Johnson Trust Ltd [1973] 3 All ER 289, [1974] QB 24, [1973] 3 WLR 149, CA. Ridge v Baldwin [1963] 2 All ER 66, [1964] AC 41, [1963] 2 WLR 935, HL.Introduction:
Appeal The Secretary of State for the Home Department appealed with leave of the Court of Appeal against the decision of that court (O'Connor, Nicholls and Taylor LJJ) ([1989] 1 All ER 777, [1989] 2 WLR 603) on 9 November 1988 dismissing the Secretary of State's appeal against the decision of Macpherson J given on 23 November 1987 (i) granting an application by the respondent, Shahib Al-Mehdawi, for judicial review to quash the determination of an immigration adjudicator dated 5 December 1985 whereby he dismissed an appeal by the respondent against the decision of the Secretary of State issued on 12 March 1985 to deport him pursuant to s 3(5)(a) of the Immigration Act 1971, and (ii) ordering that the matter be remitted to an adjudicator for a further hearing. The facts are set out in the opinion of Lord Bridge.Counsel:
John Laws and David Pannick for the Secretary of State, Sir Charles Fletcher-Cooke QC and George Warr for the respondent.Judgment-READ:
Their Lordships took time for consideration. 23 November. The following opinions were delivered. PANEL: LORD BRIDGE OF HARWICH, LORD ROSKILL, LORD BRANDON OF OAKBROOK, LORD OLIVER OF AYLMERTON AND LORD GOFF OF CHIEVELEYJudgment One:
LORD BRIDGE OF HARWICH. My Lords, the respondent is a citizen of Iraq who came to this country in 1977 and was given leave to enter as a visitor. Shortly after entry he applied for and was granted temporary leave to remain as a student. The period of this temporary leave was extended from time to time, but the last extension expired in 1984 and on 4 May 1984 an application for a further extension was refused by the Secretary of State. An attempt to appeal against that refusal under s 14(1) of the Immigration Act 1971 was ineffective because the notice of appeal was given out of time. The respondent nevertheless remained in this country and on 12 March 1985 was given notice of the Secretary of State's decision to make a deportation order against him. He instructed solicitors to appeal against this decision and they duly gave notice of appeal under s 15(1) of the 1971 Act accompanied by a letter saying that the grounds of appeal would follow later. Notice was in due course given to the respondent's solicitors in accordance with r 24 of the Immigration Appeals (Procedure) Rules 1984, SI 1984/2041, that the appeal would be heard on 21 November 1985. Rule 44 expressly provides that any notice, if sent or given to a person representing a party to an appeal in accordance with r 26(1), shall be deemed to have been sent or given to that party. When the adjudicator sat to hear the appeal on 21 November no further communication had been received from the solicitors and neither the respondent nor any solicitor appeared. Rule 34(2) of the 1984 rules provides:'. . . an appellate authority may proceed with the hearing of an appeal in the absence of a party (including the appellant) if satisfied that, in the case of that party, such notice of the time and place of the hearing . . . as is required by Rule 24, has been given.'The adjudicator was invited by the Home Office representative to proceed in accordance with this rule and determine the appeal on the basis of the documents before him. He did so and dismissed the appeal.
What had happened was that the solicitors then acting, although they knew the respondent's current address, had sent notice of the hearing date to him at a previous address and the respondent had never received it. When the solicitors received notice of the dismissal of the appeal, they again misaddressed the communication intended to inform the respondent of the result. The upshot was that by the time the respondent knew of the dismissal of his appeal it was too late to appeal further against the adjudicator's decision. On 28 April 1986 a deportation order was made and directions were given for the respondent's removal to Iraq, but they were not implemented, evidently because a claim to political asylum was made by the respondent. This was the subject of representations to the Home Office by new solicitors acting for the respondent and a member of Parliament who intervened on his behalf. Eventually the claim to asylum was refused. On 5 February 1987 the respondent applied for judicial review of the adjudicator's decision dismissing his appeal on the ground, put shortly, that there had been a breach of the rules of natural justice in that he had been denied a hearing. Macpherson J allowed the application and quashed the adjudicator's decision. The Court of Appeal (O'Connor, Nicholls and Taylor LJJ) ( [1989] 1 All ER 777, [1989] 2 WLR 603) affirmed Macpherson J. The Secretary of State now appeals by leave of the Court of Appeal. The appeal raises a question of great importance with respect to the scope of the remedy by order of certiorari to quash the decision of an inferior tribunal. Does certiorari lie to quash a decision given without hearing the applicant for certiorari when the tribunal giving the decision has acted correctly in the procedure adopted but the applicant was deprived of the opportunity to put his case by the negligence of his own legal advisers or otherwise without personal fault on the part of the applicant? This question had been considered once before by the Court of Appeal in R v Diggines, ex p Rahmani [1985] 1 All ER 1073, [1985] QB 1109. That was another case relating to the decision of an adjudicator under the 1971 Act who was mistakenly informed by the United Kingdom Immigrants Advisory Service (UKIAS), acting for the appellant, that they had no instructions. The Court of Appeal quashed the decision on the ground of a denial of natural justice to the appellant arising from the fault of the UKIAS. The Court of Appeal proceeded on the assumption that there had been no error of procedure by the adjudicator. However, when Rahmani's case came before your Lordships' House on appeal the House held that the question decided by the Court of Appeal did not arise and dismissed the appeal on the ground that the adjudicator had erred in determining the appeal without a hearing in reliance on r 12(c) of the Immigration Appeals (Procedure) Rules 1972, SI 1972/1684, the rules then in force, since there was no material before the adjudicator which justified him in finding under that paragraph that no person was authorised to represent the appellant at the hearing (see [1986] 1 All ER 921, [1986] AC 475). In the instant case, by contrast, no criticism is, or could be, made of the procedure adopted by the adjudicator in hearing and determining the appeal in the absence of the appellant in the exercise of the express discretion conferred on him by r 34(2) of the 1984 rules. Macpherson J acted on a concession made by junior counsel for the Secretary of State that, unless he could show personal fault on the part of the respondent, the court was bound by Rahmani's case and should grant the relief claimed. Before the Court of Appeal this concession was withdrawn and the court accepted the submission that the decision of the Court of Appeal in Rahmani's case was not of binding authority since the House of Lords had decided the case on a different ground and had held that the point of principle decided by the Court of Appeal did not arise. The court, however, went on to reach the same conclusion on the question of principle as had been reached by the Court of Appeal in Rahmani's case for essentially the same reasons. Your Lordships must now decide the question of principle and the question whether the reasoning of the Court of Appeal in Rahmani's case was technically binding becomes academic. In these circumstances your Lordships did not find it necessary to hear argument on the point raised relating to the application of the doctrine of stare decisis. The central submission made by counsel for the Secretary of State is that the so-called rules of natural justice are concerned solely with the propriety of the procedure adopted by the decision-maker. In particular, the rule expressed in the Latin maxim audi alteram partem requires no more than that the decision-maker should afford to any party to a dispute an opportunity to present his case. This view certainly receives support from many classic statements of the doctrine. The duty 'fairly to hear both sides' is described by Lord Loreburn LC in Board of Education v Rice [1911] AC 179 at 182, [1911--13] All ER Rep 36 at 38 as 'a duty lying upon everyone who decides anything'. In Ridge v Baldwin [1963] 2 All ER 66 at 71, [1964] AC 41 at 64 Lord Reid said of the watch committee who had dismissed the chief constable without a hearing:'. . . before attempting to reach any decision they were bound to inform him of the grounds on which they proposed to act and give him a fair opportunity of being heard in his own defence.'Lord Diplock said in O'Reilly v Mackman [1982] 3 All ER 1124 at 1130, [1983] 2 AC 237 at 279:
'Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights accorded to him by the rules of natural justice or fairness, viz to have afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to the absence of personal bias against him on the part of the person by whom the decision falls to be made.'In Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935 at 950, [1985] AC 374 at 410 Lord Diplock classified the grounds on which administrative action is subject to judicial review under the three heads of illegality, irrationality and procedural impropriety. It is the third head which embraces breaches of natural justice. Counsel for the Secretary of State submits that the very concept of impropriety in the procedure by which a decision is reached necessarily connotes an irregularity in the conduct of the proceedings by the decision-maker. Conversely, a failure by the legal adviser or any other agent to whom a party to any proceedings has entrusted the conduct of his case, being beyond the knowledge and control of the decision-maker, cannot involve either any procedural impropriety or the breach of any duty which the decision-maker owes to that party.
One line of authority on which the Court of Appeal relied, both in Rahmani's case and in the decision now under appeal, leads to what is at least an apparent exception to the general principle which counsel's submission seeks to establish. In R v Gillyard (1848) 12 QB 527, 116 ER 965 the court quashed by certiorari a conviction by justices shown to have been obtained by fraud and collusion. This was followed in R v Leicester Recorder, ex p Woods [1947] 1 All ER 928, [1947] KB 726 and extended in R (Burns) v Tyrone County Court Judge [1961] NI 167 to allow the quashing of an affiliation order obtained on the strength of perjured evidence of witnesses called to furnish the required corroboration of the evidence of the complainant, although it was not shown that the complainant herself was party to the perjury. At first blush, these cases have nothing to do with the rules of natural justice, and certainly do not depend on the maxim audi alteram partem. They appear simply to be examples of the principle that fraud unravels everything. However, the authority on which counsel for the respondent relies, and which persuaded the Court of Appeal that the procedural impropriety involved in a breach of the rules of natural justice could not be confined to errors on the part of the decision-making body, is R v Leyland Magistrates, ex p Hawthorn [1979] 1 All ER 209, [1979] QB 283. In that case the driver of one of two cars involved in a collision had been prosecuted and convicted for driving without due care and attention. The police had taken statements from two witnesses of the accident, but these witnesses were not called by the prosecution and their existence was not disclosed to the defence. The driver successfully applied for an order of certiorari to quash the conviction. Delivering the first judgment Lord Widgery CJ said ([1979] 1 All ER 209 at 210--211, [1979] QB 283 at 286):'Nothing is there said about breach of the rules of natural justice. There is no doubt that an application can be made by certiorari to set aside an order on the basis that the tribunal failed to observe the rules of natural justice. Certainly if it were the fault of the justices that this additional evidentiary information was not passed on, no difficulty would arise. But the problem, and one can put it in a sentence, is that certiorari in respect of breach of the rules of natural justice is primarily a remedy sought on account of an error of the tribunal, and here, of course, we are not concerned with an error of the tribunal: we are concerned with an error of the police prosecutors. Consequently, amongst the arguments to which we have listened an argument has been that this is not a certiorari case at all on any of the accepted grounds. We have given this careful thought over the short adjournment because it is a difficult case in that the consequences of the decision either way have their unattractive features. However, if fraud, collusion, perjury and such like matters not affecting the tribunal themselves justify an application for certiorari to quash the conviction, if all those matters are to have that effect, then we cannot say that the failure of the prosecutor which in this case has prevented the tribunal from giving the defendant a fair trial should not rank in the same category. We have come to the conclusion that there was here a clear denial of natural justice. Fully recognising the fact that the blame falls on the prosecutor and not on the tribunal, we think that it is a matter which should result in the conviction being quashed. In my judgment, that is the result to which we should adhere.'This decision was followed in R v Blundeston Prison Board of Visitors, ex p Fox-Taylor [1982] 1 All ER 646.
Though I do not question the correctness of the decision in Hawthorn's case, I do question whether it is correctly classified as a case depending on either procedural impropriety or a breach of the rules of natural justice. Certainly there was unfairness in the conduct of the proceedings, but this was because of a failure by the prosecutor, in breach of a duty owed to the court and to the defence, to disclose the existence of witnesses who could have given evidence favourable to the defence. Although no dishonesty was suggested, it was this suppressio veri which had the same effect as a suggestio falsi in distorting and vitiating the process leading to conviction, and it was, in my opinion, the analogy which Lord Widgery CJ drew between the case before him and the cases of fraud, collusion and perjury, which had been relied on in counsel's argument, which identified the true principle on which the decision could be justified. In any event, Hawthorn's case, if it is relied on as an authority to support the conclusion of the Court of Appeal in Rahmani's case and the instant case, proves too much. If unfairness resulting from a failure by the prosecutor to disclose the names of witnesses, so that the defence is deprived of their evidence, is taken as a precedent for allowing certiorari on the ground of a failure in the conduct of proceedings by the defendant's own legal advisers, the logic of the argument would lead to the conclusion that a negligent failure by the defendant's own legal advisers to secure the attendance of necessary defence witnesses would entitle the defendant to have his conviction quashed if he was personally free of blame for the failure. But this was a conclusion which counsel for the respondent rightly declined to support. Taylor LJ, who delivered the leading judgment in the Court of Appeal in the instant case, was also the judge of first instance whose decision was affirmed by the Court of Appeal in Rahmani's case. His judgments in both cases and two of the judgments in the Court of appeal in Rahmani's case appear to me implicitly to take as their premise the proposition that a party to a dispute who, through no fault of his own, has not in fact been heard has been denied natural justice. Thus, Taylor J in Rahmani's case, in a passage cited with approval by Stephenson LJ ([1985] 1 All ER 1073 at 1079, [1985] QB 1109 at 1118), said:'I find it incongruous to say, on the one hand, that one is concerned with the principles of natural justice and, on the other, to say one can only grant the remedy if natural justice is breached from a particular direction. In my judgment, it cannot be a proper test whether the remedy should be granted, in a case where the aggrieved party is wholly innocent, to ask whether the breach of natural justice has come from the court, the adjudicator, the opposition or from some fault on the part of the applicant's legal advisers.'In a later passage, cited again with approval by Stephenson LJ ([1985] 1 All ER 1073 at 1082, [1985] QB 1109 at 1123), he said:
'It seems to me that there is a clear distinction to be drawn between the situation in the present case, which must be rare indeed, where there has been no oral hearing at all in a case which gravely affects the applicant's future, and cases on the other side of the line where there has been an oral hearing but subsequently some further evidence has emerged which it is suggested might have made a difference to the outcome. In the former case, which is the present case, it seems to me that there has been a basic failure in the rules of natural justice.'My added emphasis in this passage is intended to highlight the underlying position. Purchas LJ went so far as to say ([1985] 1 All ER 1073 at 1085, [1985] QB 1109 at 1126):
'It is common ground that in the instant appeal there was a failure to observe the basic principle of natural justice, audi alteram partem, and that this was caused by shortcomings on the part of the agents, UKIAS.'Later he added ([1985] 1 All ER 1073 at 1086, [1985] QB 1109 at 1128):
'. . . I cannot agree that in the presence of an established breach on the part of an inferior tribunal of the rules of natural justice, e g a failure to obey the principle audi alteram partem, the court has no jurisdiction to grant an order of certiorari, notwithstanding that the failure has arisen through no fault of the tribunal itself.'If the basic proposition enunciated in these various statements appeared to be common ground in Rahmani's case it was certainly not so before your Lordships. Indeed, the very question which falls for decision is whether a party can complain of a denial of natural justice where he has been afforded by the decision-maker an opportunity of presenting his case but through the fault of his own advisers the opportunity has not been taken. Fox LJ approached the issue rather differently. He said ([1985] 1 All ER 1073 at 1084, [1985] QB 1109 at 1125):
'The real question is whether there was, in truth, a breach of the rules of natural justice. That requires in each case an examination of the facts, including the conduct of the applicant. If one concludes that there was, I do not see why the court cannot grant certiorari if it thinks fit, even if the tribunal itself did not err. It seems to me that the present case does not take the principle beyond that accepted in the [Hawthorn] and Blundeston cases, and since it seems to me that there has in fact been a denial of natural justice for which the applicant was in no way responsible I think that the decision of Taylor J was correct.'I have already explained why I do not think that Hawthorn's case can be relied on as an authority to support the Court of Appeal's conclusion. It has traditionally been thought that a tribunal which denies natural justice to one of the parties before it deprives itself of jurisdiction. Whether this view is correct or not, a breach of the rules of natural justice is certainly a sufficiently grave matter to entitle the party who complains of it to a remedy ex debito justitiae. But there are many familiar situations where one party to litigation will effectively lose the opportunity to have his case heard through the failure of his own legal advisers, but will be left with no remedy at all except against those legal advisers. I need only instance judgments signed in default, actions dismissed for want of a prosecution and claims which are not made within a fixed time limit which the tribunal has no power to extend. In each of these situations a litigant who wishes his case to be heard and who has fully instructed his solicitor to take the necessary steps may never in fact be heard because of his solicitor's neglect and through no fault of his own. But in any of these cases it would surely be fanciful to say that there had been a breach of the audi alteram partem rule. Again, take the case of a county court action where a litigant fails to appear at the hearing because his solicitor has neglected to inform him of the date and consequently judgment is given against him. He can at best invite the court in its discretion to set aside the judgment and it is likely to do so only on the terms that he should pay the costs thrown away. Yet, if it can be said that he has been denied natural justice, he ought in principle to be able to apply for certiorari to quash the judgment, which, if he is personally blameless, should be granted as a matter of course.
These considerations lead me to the conclusion that a party to a dispute who has lost the opportunity to have his case heard through the default of his own advisers to whom he has entrusted the conduct of the dispute on his behalf cannot complain that he has been the victim of a procedural impropriety or that natural justice has been denied to him, at all events when the subject matter of the dispute raises issues of private law between citizens. Is there any principle which can be invoked to lead to a different conclusion where the issue is one of public law and where the decision taken is of an administrative character rather than the resolution of a lis inter partes? I cannot discover any such principle and none has been suggested in the course of argument. In this regard, the decision in R v West Sussex Quarter Sessions, ex p Albert & Maud Johnson Trust Ltd [1973] 3 All ER 289, [1974] QB 24 is instructive. Landowners exercised their right to apply to quarter sessions for a declaration that a path across their land shown as a public footpath on a map prepared by the county council under the National Parks and Access to the Countryside Act 1949 was not a public footpath. The application was rejected. The effect of this decision under the statute was conclusively to determine that the path was a public footpath and it could only be challenged on appeal by case stated on a point of law. The landowners later discovered fresh evidence and applied to the Divisional Court of the Queen's Bench Division for an order of certiorari to quash the decision of quarter sessions. The primary issue before the Court of Appeal was whether the availability of fresh evidence afforded any ground on which the court could quash by certiorari. The majority of the court (Orr and Lawton LJJ) held that it did not. Orr LJ said ([1973] 3 All ER 289 at 299, [1974] QB 24 at 39):'The limits of certiorari are, in my judgment, well established and do not extend beyond defects or irregularities at the trial. I need not enumerate all the headings under which the relief has hitherto been granted, but they all fall within those limits, and they include fraud because fraud is recognised as vitiating proceedings. In my judgment, however, it cannot be said that for this purpose there is a defect or irregularity in proceedings because the tribunal, if other evidence had been adduced, might have come to a different conclusion. To extend the ambit of certiorari to such cases would, it seems to me, be a radical transformation of its character.'Lawton LJ, after reviewing the authorities, said ([1973] 3 All ER 289 at 301, [1974] QB 24 at 42):
'How should this general law be applied to the facts of this case? Quarter sessions were acting within their jurisdiction there was nothing irregular about either the conduct of the justices or of the parties there were no irregularities in procedure. In my judgment this case falls outside the limits set for certiorari by the judgment in R v Bolton (1841) 1 QB 66, [1835--42] All ER Rep 71. Certiorari is not concerned with miscarriage of justice arising on the evidence but with jurisdiction and the regularity of the proceedings: see Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 444. The essence of the landowners' case is that there may have been a miscarriage of justice on the evidence because not enough was put before quarter sessions. If the new evidence had been available, it would have merely produced a conflict of evidence with which the court on certiorari is not concerned.'On this point Lord Denning MR dissented, saying ([1973] 3 All ER 289 at 296, [1974] QB 24 at 36):
'Hitherto the cases have only gone to the extent of allowing certiorari where the decision of the inferior court is vitiated by fraud or perjury. But I see no reason why the remedy should be confined to those two grounds. A decision of a question of fact may be vitiated by mistake just as much as by fraud. A witness may say something which is entirely wrong--fraudulently knowing it is false--or incorrectly believing it to be true. If the court believes him and bases its decision on it, then on discovering the untruth, the decision should be set aside--without embarking on an enquiry whether he was fraudulent or not. In such cases the fresh evidence is admitted by affidavit to prove the fraud or mistake. It is proved by something that has happened since the trial. Those cases are in my opinion only instances of the wide principle on which fresh evidence is admitted: and that is, when it is necessary to do justice between the parties. It is the same principle as has been applied for centuries in regard to decisions of the High Court. There is no reason why it should not be applied in regard to decisions of the kind here in question--decisions which will be conclusive for ever in determining the existence of a public right. I would, therefore, extend the remedy by certiorari to cases where fresh evidence is discovered which could not have been found with due diligence before the trial, where it is apparently credible and would have an important influence on the result.'Now, I am not presently concerned to express any concluded opinion as to which of these conflicting views is correct, that issue not having been argued in the instant case. The significance, however, of the decision for present purposes is this: that even on Lord Denning MR's view that certiorari would lie on the ground of the availability of fresh evidence to controvert the evidence on which the decision of quarter session was based, the landowners failed and Lord Denning MR himself concurred in the dismissal of the appeal, because the new evidence could have been discovered with due diligence before the hearing of the landowners' appeal to quarter sessions. In reaching this conclusion Lord Denning MR was applying the well-known principle applicable to the reception of fresh evidence on appeal as laid down in Ladd v Marshall [1954] 3 All ER 745, [1954] 1 WLR 1489. Thus the decision demonstrates that even in relation to a public law decision conclusively determining a matter of status (the existence of a public right of way over land) and even assuming a valid ground for attacking the decision by certiorari (new evidence not available at the trial) the party attacking the decision cannot invoke that ground when the reason for the non-availability of that evidence at the trial is his own solicitor's failure to exercise due diligence to discover it in time. This seems to me wholly inconsistent with the application of a new principle to public law decisions which would be at variance with the principle applicable to private law decisions and which would allow a party affected by a decision to have it quashed on the ground of unfairness when the unfairness resulted solely from the failure of his own advisers to take the appropriate steps. In the light of these considerations I return to the central passage in the judgment of Taylor LJ in the instant case in which he rejected the submissions of counsel for the Secretary of State and gave his reasons for holding that certiorari would lie. He said ([1989] 1 All ER 777 at 784, [1988] 2 WLR 603 at 611):
'Counsel for the Secretary of State submitted that if negligence of his own advisers could entitle an applicant to a grant of certiorari and a rehearing of his case, Pandora's box would be wide open. He conjured up the possibility of certiorari where the applicant's lawyer failed to call a witness, failed to seek an adjournment, cross-examined incompetently or otherwise left the applicant aggrieved. It was, he said, neither logical nor workable to draw a distinction between a fundamental breach of natural justice which would justify certiorari and any other unfairness which would not. One must go the whole hog. If certiorari lies here, it must lie wherever litigation ends in unfairness however caused. I cannot accept this argument ad absurdum. It is true, as counsel says, that natural justice cannot be invoked to rectify every perceived unfairness. But, in the present case there was, owing entirely to the solicitors' negligence, a breach of a basic rule of natural justice, audi alteram partem. That was a fundamental flaw in the decision-making process. It is clearly distinguishable from situations within a proper process in which the applicant's case might have been conducted more skilfully or differently. No doubt difficult cases could arise near the borderline between a reviewable defect of process and a grievance without remedy. Where that line should be drawn is perhaps incapable of a universal definition and must depend on the circumstances of each case.'Here again the argument proceeds from the assumed premise that where a party has been deprived of a hearing through his own solicitor's negligence there has been a breach of natural justice and a flaw in the decision-making process. I have already sought to explain why I think this premise cannot be sustained. But I would add that if once unfairness suffered by one party to a dispute in consequence of some failure by his own advisers in relation to the conduct of the relevant proceedings was admitted as a ground on which the High Court in the exercise of its supervisory jurisdiction over inferior tribunals could quash the relevant decision, I can discern no principle which could be invoked to distinguish between a 'fundamental unfairness', which would justify the exercise of the jurisdiction, and a less than fundamental unfairness, which would not. Indeed, counsel for the respondent was constrained to rest on the proposition that, in the last analysis, it was all a matter of discretion and the court could be trusted only to exercise its discretion in extreme cases where justice demanded a remedy. I am of the opinion that the decision of the Court of Appeal can only be supported at the cost of opening such a wide door as would indeed seriously undermine the principle of finality in decision-making. The effect of this conclusion in a deportation case may appear harsh, though no harsher than the perhaps more common case when an immigrant's solicitor fails to give notice of appeal under s 15 within the time limited by r 4 of the 1984 rules. But it is perhaps worth pointing out that in neither case is the immigrant left wholly without a remedy. In the case of a notice of appeal served out of time, the Secretary of State has a discretion under r 5 to extend the time 'if he is of the opinion that, by reason of special circumstances, it is just and right so to do'. In the case where the immigrant has failed to attend the hearing of his appeal to the adjudicator and the appeal has been heard and dismissed in his absence, the Secretary of State has the discretion conferred on him by s 21(1) of the 1971 Act whereby he 'may at any time refer for consideration under this section any matter relating to the case which was not before the adjudicator . . .' If such a reference is made the adjudicator is required by s 21(2) to 'consider the matter which is the subject of the reference and report to the Secretary of State the opinion of the adjudicator . . . thereon'. It would, as it seems to me, certainly be open to the Secretary of State, if persuaded that the merits of a case required it, to invite an adjudicator to hear the oral evidence of an appellant whose appeal had, through no fault of his own, been dismissed in his absence, and to report his opinion whether this evidence would have affected the outcome of the appeal. I would allow the appeal, set aside the orders of Macpherson J and the Court of Appeal and restore the determination of the adjudicator.