The judgment in  Jetly & Anor v The Secretary of State for the Home Department [2019] EWHC 204 (Admin) sets out a series of surprising events.  Mrs Justice Andrews came down very firmly against granting relief from sanctions. Many of the points made are of interest to litigators generally.

If ever there were a case in which the Court should refuse to exercise its discretion in favour of giving the Claimants any further indulgence, this is it.”


The claimants sought judicial review of a decision.


The first element of surprise was the misuse of the name of a firm of solicitors in relation to the writing of letters and the issue of proceedings.

  1. The PAP letter was sent to the SSHD on 14 June 2017 on paper bearing the letterhead of a firm named Archbold Solicitors (SRA ID 636856) (“Archbold”). The letterhead gave an address for Archbold at 319-320 Victory Business Centre, Portsmouth, PO1 1PJ. The letter bore the reference PM/MA/Sudha. Sudha is the first name of the Claimants’ mother.
  2. The SSHD responded to that letter on 26 June 2017. That response stated that the case had generated approximately eight previous decision letters or decision related letters, all of which supported the SSHD’s position that the solicitors’ clients did not qualify for British Citizenship. The letter identified as a central issue the fact that the Claimants’ mother, Mrs Sudha Bala Jetly, had no entitlement to a right of abode in the UK at the time of their birth. The writer said that she held a British Overseas Passport and was not registered as a British Citizen until 1 November 2004.
  3. The Claim Form was issued on 14 July 2017 and served on 21 July that year. The box on the first page for “Claimant’s or claimant’s legal representatives’ address to which documents should be sent” was filled in with the name of Archbold and the address at Victory Business Centre stated above; a telephone and fax number, and an email address: kumar@archboldsols.com. The person named as the intended signatory of the statement of truth was Maxy Augustine, who is a solicitor and one of the three partners in Archbold.
  4. The statement of truth on the Claim Form was not signed, but this was not picked up in the Administrative Court office or by the Government Legal Department (“GLD”) at the time. By virtue of CPR 22.2(1) failure to verify the Claim Form by a statement of truth renders it vulnerable to being struck out, and the party concerned may not rely on the statement of case as evidence of the matters set out in it. That includes, in a judicial review claim, the facts set out in the grounds for judicial review. The Court has the power to strike out such a statement of case of its own motion under CPR 22.2(2).
  5. CPR Part 42.1 (1) provides that where the address for service of a party is the business address of that party’s solicitor, the solicitor “will be considered to be acting for the party until the provisions of Part 42 have been complied with”. Part 42, and the Practice Direction which supplements it, address the situation where a client wishes to instruct a new solicitor, or where the solicitor who is on the record has ceased or wishes to cease acting for the client. In the former situation, the party or his solicitor (where one is acting) should file notice of change with the court. He must serve that notice on every other party (including the former solicitor) and confirm to the court that such notice has been served.
  6. In the latter situation, the solicitor must apply to the court for an order declaring that he has ceased to be the solicitor acting for a party under CPR 42.3. This is known as “coming off the record”. Unless the court directs otherwise, the solicitor must give notice of that application to the client, but he is not obliged to notify the other party to the litigation prior to the order being made. The application must be made by application notice in accordance with CPR Part 23 (see 42PD 3.2) and supported by evidence. When such an order is made, it must be served on every party to the proceedings and, if service of the order is to be effected by the solicitor, a certificate of service must be filed with the court.
  7. The rules do not expressly cater for the situation in which someone purports to issue proceedings on behalf of a claimant, giving a solicitor’s address for service, without the knowledge and/or authority of the solicitor concerned. On the face of it, CPR Part 42.1 treats the unsuspecting solicitor as acting for the claimant until he is removed from the record, yet in such circumstances, the solicitor never consciously came on the record. I can understand why the solicitor concerned might take the view that it would be unfair to require him to issue (and pay for) a formal application to come off the record instead of simply alerting the court to the situation. However, the lay client is entitled to know if there is a problem which may adversely affect the conduct of his case, as he may be wholly innocent, and could be severely disadvantaged by the conduct of the person usurping the solicitor’s function. CPR Part 42 ensures that he is put in the picture.
  8. It is a moot point whether CPR 42 requires it, but the better course in such a situation would be for a formal application to be made by the solicitor to come off the record, under CPR 42.3, once he realises what has happened. Service of the evidence in support of the application would alert an innocent lay client to the fact there is a problem. On the other hand, if it transpires that the lay client was a party to the deception, this course will enable the court to get to the root of the matter and take appropriate action.


There was a failure to comply with directions. This led to the issue of the wrong firm of solicitors being used coming to light.
    1. The Order granting permission gave case management directions, including that the Claimants must file and serve a trial bundle not less than 4 weeks before the date of hearing of the judicial review; and that they must file an agreed bundle of authorities not less than three days before the date of the hearing. In order to be able to comply with those directions, the Claimants’ solicitors would need to liaise with the GLD to agree on the contents of the authorities bundle some time in advance of the deadline. The hearing date of 19 September 2018 was apparently fixed on or around 17 April 2018, giving plenty of time for this to be done.
    2. On 14 September 2018, Mr Ellis Pinnell, the lawyer in the GLD who by then had taken over responsibility for this file, sent an email to Archbold inquiring when the GLD might expect to receive the Claimants’ bundle of authorities. On 17 September 2018, Mr Augustine responded by email as follows (all spellings and typing as in the original):
“Thank you for your email. Archbold Solicitors have never represented this clients in this JR matters. My signature is hacked by the previous office staffs in our previous office premises. I had complained to the Field House regarding this matter, informed Ms C O’Neill Case Progression Officer, Administrative Court Office on the 23rd of March 2018. I had requested to take our alleged representation off from the record. The brand name of Archbold Solicitors, my name and signature were fraudulently used, kindly verify my signature. This matter is intimated to Mr Jatly and they had sent us an email dated 28 March 2018 stating a disinstruction and also that they already had their files taken with them. Please contact the client directly.

From your email I understand that for some reasons the court records is still under the name of Archbold Solicitors. It is requested that any of the alleged representation of Archbold Solicitors may be withdrawn with immediate effect in this matter, please update your system.”

  1. The address for Archbold that appeared below Mr Augustine’s name was no longer in the Victory Business Centre. It was 209 Portsmouth Technopole Ltd, Kingston Crescent, Portsmouth PO2 8FA. Reference was also made to a Head Office for Archbold in Ilford Lane in Essex.
  2. On receipt of Mr Augustine’s email, Mr Pinnell reviewed the file. That is when he discovered that the statement of truth on the Claim Form had not been signed. He also noted that a skeleton argument on behalf of the Claimants that the GLD had received on 31 August 2018 was served under cover of a letter from “Aaron & Ace Solicitors, Unit 11, Victory Business Centre, Portsmouth PO1 1PJ” – Archbold’s previous office address, which was still the address for service of correspondence on the claim form.
  3. Mr Pinnell had concerns about that communication besides the fact that the GLD had received no notice of change of solicitor. There were curious features about the letter of 31 August (see paragraph 28 below) which raised doubts as to whether the correspondence came from a genuine firm of solicitors. I should perhaps mention at this juncture that the only piece of correspondence on the Court’s paper file from Aaron & Ace is that letter of 31 August, and there is no correspondence from Aaron & Ace saved on the Court’s electronic file.
  4. Mr Pinnell, entirely properly, immediately brought these matters to the attention of Mr Malik, counsel for the SSHD, and wrote to the Administrative Court office on 18 September 2018 explaining the situation. Mr Malik contacted counsel for the claimant, Mr Jafar, to let him know about these developments. Mr Jafar had been instructed in the matter from the onset. He had settled the grounds for Judicial Review appended to the claim, had appeared at the hearing of the renewed application for permission, and was the author of the skeleton argument for the hearing of the substantive claim. Mr Pinnell’s letter to the Court said that he understood that Mr Jafar would be attending the hearing on 19 September, and that he would hopefully be able to address the Court on these matters.


Unsurprisingly the first hearing could not proceed.
    1. The upshot was that when the matter came before HH Judge Wall QC (sitting as a deputy High Court Judge) on 19 September 2018, he was unable to proceed with the hearing of the claim for judicial review. In his short ex tempore judgment, the judge pointed out that the absence of the signed statement of truth on the claim form meant that the Claimants were unable to rely upon their statement of case as evidence of any of the matters set out in it. He said there were potential ways round this; an application for relief from sanctions could be made, or alternatively an application could be made for the claim form to be signed now by the Claimants in person. However, neither of those applications had been made. The obvious and necessary implication of the judge’s observations was that one or other of these types of application would have to be made by the Claimants if the claim was to proceed.
    2. The judge described the trial bundle lodged on behalf of the Claimants as “completely inadequate” – a fair description, since it did not even contain the claim form. Another document on which the Claimants sought to rely (a letter from HM Passport office to the Claimants’ mother dated 8 March 2018) was handed to the judge shortly before he went into court. That was not in the trial bundle either. Moreover, the bundle of authorities, which should have been lodged by the Claimants in accordance with the order made when permission was granted in January 2018, had still not been lodged.
    3. In the light of these matters, Mr Malik invited the judge to either strike out the claim or to dismiss it. In response, Mr Jafar sought an adjournment. He told the judge that he was instructed by Aaron & Ace, who had been instructed by the Claimants since March 2018. However, as the judge pointed out, Aaron & Ace were not on the record. They had not notified the SSHD that they were acting in this matter until they were chased for documents at the beginning of that week.
    4. There were also what the judge described as “other curiosities” apparent from the face of the letter of 31 August, which he itemised as follows:
i) The form of the letter did not comply with SRA requirements in that it gave no list of partners on the letterhead and no indication that it was regulated by the SRA;
ii) The website address for Aaron & Ace set out on the letterhead did not work and appeared not to exist;
iii) The business premises were supposed to be in Portsmouth (interestingly, at the same place as Archbold were originally registered) but their telephone number was in London;
iv) Apparently when one traced Aaron & Ace through the SRA, the only registered office for them was in North London.
  1. The judge said that none of these apparent discrepancies had been explained satisfactorily to him. However, bearing in mind the need for fairness and the importance of this issue for the Claimants, he decided to grant an adjournment “to allow for any further applications that need to be made by the Claimants to be made and for further evidence in support of those applications, and to explain the deficiencies that I have been through just now in some detail, to be lodged. He said that there would be “a short period for this to be done. If there are to be any further applications or any further evidence to be served, it is all to be served within 21 days from today. In addition to that, if the claimants intend to proceed with this action, they are within that same 21 day period to serve a full and updated trial bundle and a proper bundle of authorities.” Those directions were plain, unambiguous, and easy to understand.
  2. So far as the terms of the adjournment were concerned, the judge stated in his judgment that the claimants must bear the costs of £8,039 and pay them within 28 days, failing which the action would be struck out. However, the judge modified that direction, and the Order that was drawn up on 19 September 2018 and sealed the following day provides instead at paragraph 6 that Mr Anis Ali or the supervising solicitor of Aaron & Ace Solicitors should show cause within 21 days of the Order as to why they should not personally pay wasted costs, in the sum of £1,000, concerning the adjourned Judicial Review hearing. Save for that provision, by paragraph 11, costs were reserved.
  3. The Order set out directions reflecting the terms in which the judge had expressed himself in the judgment, including directions that within 21 days, the Claimants should file and serve any application that they wished to make, together with any evidence on which they wished to rely in response to the matters raised in the oral judgment. The same deadline was set for the filing and service of the trial bundle and a composite authorities bundle compliant with the requirements of Part 54 of the CPR “should [the Claimants] wish to pursue this Judicial Review claim“. The 21 days expired without any of these things having been done.
  4. On the most generous reading of the judge’s Order, the 21-day time limit expired on 11 October 2018. No application for an extension of time was issued or served either before or after it expired.


It transpired that the solicitors on the record, Archbold, had had their name misused. They were told that they had to apply to come off the record – in a case where they should never have been on the record in the first place.

  1. Mr Augustine said that on receipt of the email from the GLD requesting the draft index for the authorities bundle on 14th September, Archbold immediately informed Field House on 17 September 2018 regarding any possible permission applications or JR applications made on Archbold’s behalf, and they also asked the [Administrative] Court to remove their name from the record with immediate effect. He also said that they contacted the suspected clients “advising that we do not represent them and asked them to instruct their own representative“.
  2. The caseworkers in the Administrative Court office have confirmed that an email from Mr Augustine was received on 23 March 2018, but regrettably it was not responded to until 30 April 2018, when Archbold were advised that they would need to apply formally to come off the record. On 1 May 2018 Mr Augustine again emailed the Court requesting that Archbold be taken off the record; the Court office responded by informing them that they would remain on the record until such time as they applied to come off the record or another firm of solicitors applied to come on the record. Unfortunately, that information was not acted upon.
  3. It would therefore appear that no formal application has ever been made by Archbold for an order under CPR Part 42.3, but if Mr Augustine is telling the truth about the limited scope of their retainer, Archbold should never have been on the record in the first place. It also appears that there may be other matters relating to other “clients” proceeding before the First-tier or Upper Tribunal (Immigration and Asylum Chamber) that may be affected by these issues, hence the contact made by Mr Augustine with Field House.


Again, perhaps unsurpringly, there were major defaults and delays in the substantive action.
  1. By contrast with Archbold, Aaron & Ace made no attempt to comply with the judge’s directions within the 21-day deadline. They did not serve the trial and authorities bundles on the GLD until 12 November 2018, 54 days after the Order of 19 September was made. The SSHD complains that, even then, the bundle of authorities was not agreed and omitted important authorities, and the trial bundle included fresh evidence on the substantive issues for which permission was neither sought from, nor granted by HH Judge Wall QC. There were two supplementary authorities bundles at the hearing before me.
  2. The documents served on 12 November included a witness statement from Mr Anis Ali signed on 28 October 2018, though bearing the date of 8 October, and a witness statement from Mr Brij Jetly, bearing the date 5 October 2018. There was no application made to adduce Mr Jetly’s witness statement in evidence, but Mr Jafar submitted that it fell within the ambit of paragraph 5 of HH Judge Wall QC’s Order, because it provided an explanation of the matters of concern raised by the judge in his judgment.
  3. Mr Ali referred expressly to the 21-day time limit set by the judge, but he offered no explanation at that time for exceeding it, even though he must have known by the time he signed the witness statement on 28 October that the 21 days had already elapsed. He set out a chronology of events, in which he stated that his firm were instructed by the Claimants’ father on their behalf on 22 March 2018 and were provided with the file of papers which they (meaning the Claimants’ representatives) had collected from the previous representatives, Archbold.
  4. Mr Ali said that he had personally attended room number WG07 on the morning of 17 April 2018 to fix the hearing date for the substantive JR hearing in response to a letter of 9 April sent to Archbold, a copy of which was provided to his firm by a person described as “the claimants’ sponsor Mr Brijettly Bhooshan” (this must be a reference to the Claimants’ father). He did not explain how Mr Jetly came to be in possession of a document sent by the Court to Archbold more than 2 weeks after he had ceased to instruct them, collected the client file and handed it to new solicitors. The Court would have used the details on the Claim Form to communicate with Archbold, so it is likely any such communication went to the original office address in Portsmouth. (Mr Jetly has not explained this either).
  5. Mr Ali claimed that on the same day (17 April 2018) he attended the Administrative Court office to submit an N434 form (notice of change of solicitor) duly signed by himself. Mr Ali did not explain why he waited until 17 April to file the notice of change (which bears the date of 16 April on its face) if he was instructed on 22 March and came into possession of the file on the same date.
  6. The Administrative Court office has no record of the N434. In the light of the information provided by Mr Ali, Mr Pinnell decided to make inquiries as to whether a notice of change of solicitors had indeed been filed as Mr Ali claimed that it had. He sent an email on 30 November 2018 asking the Administrative Court office whether the Court had any record of receiving an N434 from Aaron & Ace on or around 17 April 2018, or indeed at any time since. He asked to be provided with a copy if there was one. The response from the Administrative Court office was that “no N434 has been noted as received.” That remained the position up to and including the date of the hearing before me on 11 December, when a further check of the records was carried out at my direction.
  7. If the N434 had been handed over at the counter, it would normally be recorded on the Court’s electronic file, and then scanned onto the Court’s electronic record. There is nothing on the record. It is not in a paper file either. Moreover, despite Mr Ali indicating that he attended at the List Office on 17 April in person to fix the substantive hearing date of 19 September, the letter notifying the parties of that hearing date was sent by the Court office to Archbold (not Aaron & Ace) on 19 April 2018. That suggests that the office staff were unaware of any change of solicitor. Mr Augustine was still corresponding with the Administrative Court office about coming off the record at the end of April/beginning of May and, as stated in paragraph 41 above, on 1 May the Court office told Mr Augustine that his firm would stay on the record until either he applied to come off or until another firm came on the record. The terms of that communication are difficult to reconcile with Mr Ali having already filed a notice of change with the Administrative Court office.
  8. Mr Ali does not say in his witness statement that he served the notice of change on the GLD or on Archbold, though the copy of the notice annexed to his statement, (signed presumably by him), contains a box which is ticked to indicate that the notice has been served “on every party to the claim and on the former legal representative.” I find as a fact that it was not served on the GLD or on Archbold. The evidence in this regard is all one way. Mr Pinnell would not have been corresponding with Archbold in September if he had been formally notified that there was a change of solicitor, and Mr Augustine would not have reacted in the way he did on 17 September 2018 had he already received a notification that his firm had been taken off the record and replaced by another firm. The fact that Aaron & Ace were operating from Archbold’s former business premises in Portsmouth by the time of the 31 August 2018 communication with the GLD (though allegedly not at the time when Mr Ali says he sought to come on the record) only served to heighten any confusion.
  9. Mr Ali said in his initial witness statement that all further correspondence on the matter came from his firm. He said that the trial bundle supplied to the defendant included a copy of the client’s letter of authority which was “signed by the client” on 22 March 2018 and that he believed that the statement by the GLD in their letter of the 18 September 2018 that they had not received a letter of authority was due to an “oversight”. However, the only “letter of authority” which was annexed to Mr Ali’s witness statement identified “the client” as Sudha Bala Jetly. It mentions neither of the Claimants, and there is no reference anywhere in that letter to these judicial review proceedings. In any event, a letter of authority from a client is not the same thing as a notice of change of solicitor.
  10. Nowhere in Mr Ali’s evidence was there any reference to either of the parents of these Claimants being authorised to instruct solicitors to act on the Claimants’ behalf either generally or specifically in relation to the claim for judicial review. Mr Ali did not state that he had satisfied himself of their authority or that he had seen any power of attorney or other form of authorisation. Given that by the time he made his witness statement he was aware that nobody had signed the statement of truth on the judicial review Claim Form on behalf of the Claimants, and that that situation needed to be rectified as a matter of urgency, I would have expected something to have been said about this.


The judge set out the position as it stood at the date of the hearing of the substantive application.

    1. As at 11 December 2018 when the substantive application for judicial review came before me the position was as follows:
i) The claim form was still not verified with a statement of truth;
ii) No application to verify the claim form, or for relief from sanctions, had been issued on the Claimants’ behalf within the 21-day time limit set by HH Judge Wall QC;
iii) The trial bundle and bundle of authorities were lodged long after the additional 21 days given for doing so had expired and there was a complaint by the GLD that they were still deficient;
iv) There was no extant application for relief from sanctions for the failure to lodge the trial bundle and bundle of authorities within 21 days from the previous Court order and/or the failure to comply with the other directions within those 21 days; however, there was a second witness statement from Mr Ali in support of such an application;
v) No formal application had ever been made for an extension of the time limits set out in the Order of HH Judge Wall QC either before or after they expired;
vi) There had been a very belated attempt to issue an application to sign the statement of truth without paying the requisite fee; a fee waiver was refused, just as fee waivers had been sought and refused in the past.
vii) There was no evidence before the Court from any source that either of the Claimants had ever authorised either of their parents to instruct solicitors on their behalf to issue judicial review proceedings, or had given direct authorisation to either firm to act on their behalf.
viii) The solicitors whose name appears on the record, Archbold, said that they were never instructed to bring these proceedings. They have been saying so consistently since at least mid-March 2018 when they moved offices, and the only client care letter that was produced appeared to support their position;
ix) The solicitors who were instructed to take over the case, Aaron & Ace, had not come on the record, and had failed miserably to comply with CPR 42.
x) However, those solicitors did, albeit belatedly, produce an innocent explanation for the three matters appearing on the face of their letter to the GLD of 31 August that gave rise to understandable concerns;
xi) Mr Ali had produced a witness statement seeking to explain why the order of HH Judge Wall QC was not complied with, but it had not yet been filed, and left many loose ends.



The judge then went on to consider matters relating to relief from sanctions.


    1. The applicable principles are well known (see CPR 3.9(1)) and the Court will adopt the three-stage approach set out in Denton v T H White Ltd (above). The first stage is to assess whether the breaches are serious or significant (or both). In that regard it is important to bear in mind the observations of Singh LJ in the recent case of R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841 at [67], emphasising the need for public law litigation to be conducted with an appropriate degree of formality and predictability as in other forms of civil litigation.
Are the breaches serious or significant?
    1. In my judgment, the breaches were both serious and significant, arising as they did against a background where the previous judge had effectively granted relief from sanctions on terms, but those terms, which were the practical equivalent of an “unless” order, were then not complied with. At least as regards two of the three steps the judge required to be taken within 21 days no attempt was made to comply with his order or to seek an extension of time. As regards the third step, the only request for an extension of time was made informally, and an assumption appears to have been made that it was or would be granted, but then the requested deadline was not adhered to either.
    2. It was suggested by Mr Jafar that the failure to comply with the 21 day time limit made no appreciable difference to the progress of the case, but the fact remains that even on the date of the hearing before me, the statement of truth remained unsigned, and the Claimants and their solicitors were no further advanced in curing that deficiency than they were on 19 September. The remaining aspects of HH Judge Wall QC’s order had been complied with, but very late.
    3. The further delay arose against a background of significant delay. The claim for judicial review, when originally issued, was a few days outside the three-month time limit for seeking judicial review, at least so far as the original decision under challenge (the decision of 10 April 2017) was concerned. Whilst a PAP letter is normally required before a claimant commences proceedings for judicial review, a claimant cannot artificially extend time by issuing the letter towards the end of the three-month period and then waiting for a response.
    4. The claim form was issued promptly after the response to the PAP letter, but it failed to annexe the crucial documents. That led to delay in consideration of the application for permission on the papers. After permission was granted in January 2018, there was a further hiatus in fixing the date of the substantive hearing. This was at least partly due to an alleged decision by Mr Jetly senior to change solicitors to Aaron & Ace, a one-man firm that was then registered in North London, for no apparent reason other than that Archbold were moving offices to a different address in Portsmouth (where he lives).
    5. By the time the matter came before him in September, with the hearing bundle in a shambolic state and no bundle of authorities filed, in direct contravention of a court order, HH Judge Wall QC said that there was no doubt in his mind that “at no stage has this claim been pursued expeditiously. It has been pursued in a wholly inadequate fashion.” I respectfully agree. That hearing then had to be adjourned, leading to another three months’ delay. The failure to comply with any aspect of the judge’s directions until 54 days after his Order, more than twice the period he allowed the Claimants to put their tackle in order, must be evaluated against that background.
    6. The judge made it clear on the face of his Order that the latter step was required from the Claimants “should they wish to pursue this Judicial Review claim“. He said at the hearing, at which Counsel was present and able to give an explanation to the solicitor, even if the solicitor failed to understand what was going on, that he was giving the Claimants a “short period of time” and emphasised the 21-day deadline for compliance. In other words, he was granting the Claimants what in the circumstances might be regarded as a fairly generous 3-week extension of time for compliance with directions given as long ago as 9 January 2018 for serving and filing a proper hearing bundle and bundle of authorities.
    7. Aaron & Ace did not need to wait for the transcript of the judgment in order to appreciate that if their clients wished to pursue this claim it was incumbent upon them to file and serve, by no later than 11 October 2018, any applications that they wished to make, together with any evidence on which they wished to rely in support of those applications, and a trial bundle and composite authorities bundle compliant with the requirements of CPR Part 54. That much was clear from paragraphs 2 and 3 of the Judge’s Order.
    8. Mr Ali’s latest Affidavit affords no explanation for these failures. He seems to have assumed that he could file the trial bundle and authorities bundle 21 working days before the date re-fixed for the hearing. At the very least this suggests a failure to read and/or digest the terms of the Order that was made, which varied the original directions made when permission was granted.
    9. Apart from the “completely inadequate” bundle filed prior to the September hearing, which even omitted the claim form, what really concerned the judge was the fact that the claim form was not verified by a statement of truth, which is a mandatory requirement of the rules. As he pointed out, “if the claim form remains unsigned, as it currently is, there would be no basis upon which a successful claim for judicial review could be brought“. Mr Jafar submitted that this did not matter because the documents annexed to the claim form such as photocopies of passports were formal documents which spoke for themselves. That submission was misconceived. Without a statement of truth, there is no evidence that the Claimants, their father, mother or grandparents are (or were) who they say they are, or that they are related to each other in the manner alleged, let alone that any of the documents on which they seek to place reliance relate to them.
    10. The judge gave the Claimants the same time, 21 days, to take the necessary steps to cure the fundamental problem caused by the fact that the claim form had no signed statement of truth on it, and was therefore susceptible to being struck out. That was not a difficult matter to address, as all it would have taken was an application notice supported by evidence, although if Aaron &Ace were going to sign the claim form on behalf of the Claimants, they would also need to take proper steps to ensure that they were formally on the record.
    11. I am prepared to accept that the fact that Archbold were still on the record as acting for the claimants and that the change to Aaron & Ace had not been implemented did not clearly surface until after the hearing before HH Judge Wall QC, when the evidence from the two firms of solicitors and Mr Brij Jetly was served. However what Mr Ali should have done as soon as it became apparent that his firm was not on the record, was either re-lodge that application notice and serve the application on Archbold and the GLD, or else made an application to the Court to dispense with some or all of those requirements and to make an order removing Archbold from the record and substituting Aaron & Ace. Neither of these steps was taken. I suspect that a lack of funds may have had something to do with the reluctance of those representing the Claimants to issue application notices, but a complete lack of awareness of what was required, and an unwillingness to educate themselves is also apparent.
    12. If the Claimants were going to cure the deficiency in the claim form themselves it would either have to be sent to them in India, or the Court would have to be formally requested to allow their solicitor (or possibly their attorney) to sign on their behalf. In the latter case, it would be essential to provide the Court with proper evidence that the proposed signatory (their mother and/or father) had power of attorney to act on their behalf. Given the background of Archbold’s denial that they ever received instructions, it would also be prudent to provide evidence that Aaron & Ace were properly retained.
    13. The half-hearted attempt made on 4 December 2018 to obtain an order for “the Claimants” to sign the statement of truth was in fact intended to be an application for an order that their mother should sign it on their behalf, but the Court office could not possibly have discerned that from the documents that were sent to it. The application for fee remission was equally misguided; there is no evidence that the Claimants cannot afford to pay court fees. The fact that they are abroad is irrelevant. The Claimants’ parents may be their attorneys (though I have not seen any evidence that they are) and they may have little money, but that does not mean they are substitutes for the Claimants themselves. Moreover, this was not the first time that an application for fee remission had been refused, so Mr Jetly and the solicitors should have been on notice that this further application would or might not be accepted.
    14. I accept that when Mr Ali finally did provide evidence addressing the matters of concern arising from the oddities in the letter of 31 August, he produced an innocent explanation for each of them, though that explanation still betrayed a somewhat cavalier attitude towards ensuring that communications from his firm were in the form required by the SRA and did not have the potential to cause confusion. I also accept that some effort was made to seek an extension of time for compliance with HH Judge Wall QC’s order when it became apparent that the transcript would not be available until after the deadline expired, though the extension was first sought on the penultimate afternoon for compliance and there was no proper application but simply an email request. However, the substantive requirements of the Judge’s order were still not fully complied with at the time of the hearing before me. The breaches were substantial, and they were serious.
What is the explanation for the breaches?
    1. The second stage of the Denton v White test is to consider why the failure occurred, and whether there is a good reason for it. There was no good reason for the failure to issue the application for permission to sign the statement of truth or the failure to lodge the hearing bundle and bundle of authorities within the time limit set by the judge.
    2. The Claimants have failed to satisfy me, on the balance of probabilities, that these proceedings for judicial review were issued by Archbold on their behalf, or that Archbold ever knowingly came on the record. The client care letter, on its proper construction, supports Mr Augustine’s contention that his instructions were limited to corresponding with the Home Office up to and including the pre-action protocol letter. His email exchange with Mr Jetly after the SSHD’s response was sent to him in late June 2017 made his position abundantly clear. Mr Augustine’s suggestions about how to respond were confined to the possibility of gathering more evidence in support of the application to the Home Office.
    3. If Mr Augustine had been instructed to issue the claim form, he would have had no reason not to sign the statement of truth on it. There is no suggestion that in June or July 2017 there had been any falling out between Mr Augustine and Mr Jetly. Since Mr Umar was still working for Archbold until November 2017, and his email address appears on the face of the claim form, it is more likely than not that he was responsible for the issue of the claim form. Moreover, if Mr Augustine had not signed the claim form, he would have been aware it was not signed – yet in March 2018 he was very concerned that someone may have forged his signature on the claim form.
    4. On the evidence before me, the reason why the statement of truth was not signed was not a simple oversight. It was not signed because Archbold were never retained to act in this litigation. Their written retainer only covered the writing of the PAP letter to the Home Office They should never have been named as the solicitors on the record. On the face of it, these proceedings were issued and pursued by someone with no status to conduct litigation. That is an extremely serious matter. In the light of Mr Augustine’s exchanges with Mr Jetly in the wake of the response to the PAP letter, I cannot accept that Mr Jetly had any good reason to believe that Mr Augustine was responsible for the conduct of this litigation. However, I do not know what Mr Umar led him to believe.
    5. Mr Jafar contended that the catalogue of defaults came about through ignorance rather than wilfulness. I am not persuaded that is so. On his own case, Mr Ali was quite prepared to put a document before the court which indicated on its face that notice of change of solicitor had been served, when it had not, and he either knew it had not, or took no steps to ensure that it had. Then he did nothing to cure that omission. Mr Ali is either very trusting of others, very careless, or both.
    6. Widescale ignorance of the rules of procedure (which are easy enough to look up) coupled with an apparent failure to understand the terms of a very clear court order is of a similar degree of seriousness to paying no regard to what the rules or court orders say. I do not believe Mr Ali had any proper grip on this litigation from the moment he took over conduct of the case in March. He appears to have left far too much in the hands of Mr Umar.
    7. Mr Jetly senior was perhaps too trusting of Mr Umar, but I do not consider him to be a completely innocent dupe. Much of what he said in his original witness statement, which is appears was drafted by Mr Umar, does not accord with the contemporaneous documents.
    8. It did not help the Claimants’ cause that they sought to blame the SSHD for the position in which they found themselves. Mr Jafar suggested that the SSHD was seeking to suppress the truth because “the information actually held by the Defendant showed that the Claimant is correct and the Defendant’s position false and in an attempt to maintain the false impression the Defendant seeks to deny the Court from accessing what he knows to be true and what he is still attempting to cover. These actions are the opposite of honest and appear to be an open and brazen attempt to mislead the court on the central issue in this case…
    9. There was no justification for those accusations, and they should never have been made. The SSHD maintained throughout that the Claimants bore the burden of proof (which is correct) and that it was incumbent on them to adduce evidence to establish that they are entitled to British Citizenship (also correct). The SSHD, like any respondent, was entitled to make the point to the Court that a claimant in a public law case is obliged to abide by the rules of procedure like any other claimant, and that failure to do so will attract sanctions. This is not a case of an opposing party taking unfair advantage of a trivial mistake; the deficiencies were by no means trivial, and Mr Malik made it clear in his oral submissions that the SSHD left it to the Court to decide how to respond to the defaults of the Claimants and their solicitors.
    10. Mr Jafar also unwisely sought to criticise the SSHD for raising with the Court the concerns that arose out of Mr Augustine’s email of 18 September, claiming that Mr Pinnell should have filed evidence on this topic and that if the GLD had raised concerns about the communication from Aaron & Ace of 31 August some weeks sooner, the explanation given by Mr Ali would have been forthcoming without the need to adjourn the hearing.
    11. The first point to make about that is there was nothing for Mr Pinnell to give evidence about. Mr Pinnell’s concerns only arose once he appreciated that he had been communicating with Archbold, the firm still on the record, when someone else, who had never served a notice of change of solicitor on the GLD, was purporting to act for the Claimants; and that did not happen until 18 September, after he chased up the authorities bundle. There was no time for Mr Pinnell to file evidence in advance of the hearing the next day. In any event, the correspondence spoke for itself, as did the lack of signature on the claim form and the absence of Aaron &Ace from the court record. Mr Pinnell acted as any responsible lawyer would have done in drawing that information to the attention of the Court. There was no relevant factual evidence that he could have given, other than to attest to receipt of the two relevant communications from Aaron & Ace and Mr Augustine, and possibly to the fact that he never received any notice of change of solicitor. I also have considerable doubts as to whether Mr Ali would have voluntarily responded to a request for an explanation of the three matters arising from his letter of 31 August that caused Mr Pinnell concern before the date of the hearing, even if Mr Pinnell had noticed them immediately on receipt, given how slow he was to respond to a court order directing such an explanation to be given within 3 weeks.
    12. The substantive hearing of the claim could not have gone ahead on 19 September 2018 in any event, because the directions given in January 2018 had not been complied with. There was no proper hearing bundle and no authorities bundle. The adjournment was not brought about by an allegation that there was something suspicious about the Claimants’ supposed legal representatives, it was necessitated by the failure by Mr Ali to abide by the rules of the CPR and the previous directions of the Court made in January 2018. If he had a copy of the file, he would have known about those directions. At the very least the failure to comply with the directions was negligent. That negligence caused the adjournment and costs were thrown away. That is why Aaron & Ace have failed to show cause why they should not pay the wasted costs thrown away by that adjournment.
    13. The GLD were not responsible for the matters of concern arising from the curiosities on the face of the 31 August letter from Aaron & Ace. If Mr Ali had served notice of change, as he was obliged to do, then the GLD would not have been corresponding with Archbold, and Mr Augustine would not have written the email of 18 September 2018 which triggered Mr Pinnell looking more closely at Aaron & Ace. The oddities of the 31 August communication are matters for which only Aaron & Ace are to blame. If Mr Ali had bothered to check the settings on his printer before he sent out correspondence, he would have appreciated that any letters printed off on A4 sized paper would cut off vital information, and that this would be capable of creating an impression that Aaron & Ace were not a firm of solicitors regulated by the SRA. That impression would be reinforced by the fact that if one went on the Law Society website, a firm of that name was still registered in London, not Portsmouth, and the website address on the notepaper could not be accessed. It would only have taken a matter of minutes on a computer to check if the new address had been registered.
What is the just outcome bearing in mind all the relevant circumstances?
  1. The court must specifically bear in mind the need for litigation to be conducted efficiently and at proportionate cost, and the need to enforce compliance with rules, practice directions and court orders. There is a general expectation that claims for judicial review will be disposed of expeditiously. The catalogue of repeated non-compliance with the rules, and with the first order for directions, and the abortive hearing in September 2019, led to a further 3 months’ delay in the hearing of the substantive claim, and was followed by very serious and inexcusable non-compliance with an order which itself granted relief from sanctions. All these factors point against the grant of relief.
  2. Even at the hearing in December 2018, the Court did not have all the information that it should have done to enable it to deal with the necessary further application for relief from sanctions or an extension of time for compliance, which had not even been issued (though a very late attempt had been made to issue an application notice for permission to sign the statement of truth, albeit without paying a fee) and the firm of solicitors who were acting for the Claimants were still not formally on the record. The delay in applying for relief from sanctions or for permission to cure the deficiency in the claim form until the very last moment also weighs heavily against the granting of such relief.
  3. As against that, the failure to meet the 21-day deadline imposed by HH Judge Wall QC caused no additional prejudice to the Defendant in terms of preparation for that hearing. Mr Malik very fairly conceded that the SSHD would not have opposed a properly formulated application to sign the statement of truth on the Claim Form, as he had no wish for the case to be dismissed on a technicality. Mr Jafar submitted that if the Court was minded to grant relief, the Court should direct that Aaron & Ace re-file and serve the notice of change of solicitors, and allow Mr Ali to sign the Statement of Truth. This would enable the Court to deal with the claim on its merits, which he contended were strong.


The judge went on to consider the merits of the claim, and found the merits lacking.

  1. The fact that refusal of relief from sanctions may deprive a litigant of a case with a reasonable (or even good) prospect of success may not be enough to outweigh the effect of serious and repeated breaches of rules and court orders. Mr Malik submitted that the potentially serious consequences for the Claimants, in terms of their status, had led HH Judge Wall QC to give them a final chance to put their case in order, but cannot be used to justify persistent non-compliance.


  1. If ever there were a case in which the Court should refuse to exercise its discretion in favour of giving the Claimants any further indulgence, this is it. I understand why HH Judge Wall QC granted them a further 21 days to cure the deficiencies in the statement of case and the failure to prepare proper hearing bundles. That was a fair and proportionate response, bearing in mind the potential seriousness of the consequences for the Claimants if their claim was struck out or if the deficiency was not cured, and the possibility (at that stage) that the first set of solicitors may have been to blame. However, he made it clear that he was only going to give them a short time to put their affairs in order. Their current legal representatives can have been under no illusions that this was a last chance if they wanted to be able to pursue the claim.
  2. Nothing was done to attempt to cure those deficiencies within the 21 days allowed or to seek more time. Nor was there compliance with the directions about filing a proper hearing bundle and authorities bundle. The solicitors’ response to the judge’s concerns about the 31 August letter was also produced well out of time and without seeking a formal extension of time, but that is of less importance; its real relevance is the light that it sheds on the solicitors’ general attitude and behaviour. By the time of the hearing before me, there was still no issued application to sign the statement of truth and no application for relief from sanctions. No attempt had been made to cure the defaults until a week before the hearing. The belated application that Mr Jetly had tried to issue involved asking for fee remission (without any proper basis) and was still confusing as to who would actually sign the statement of truth. It was a case of doing too little, too late. There has been no valid excuse for this catalogue of errors.
  3. I shall direct that Archbold should come off the record with effect from 16 March 2018, that being the date on which Mr Jetly has told the Court he withdrew his instructions from them. Aaron & Ace are still not formally on the record, but I shall direct that they be treated as coming onto the record on 17 April 2018 and dispense with the requirement to service notice of change of solicitors on Archbold and the GLD, since they both know that Aaron & Ace are now acting. Having failed to show cause why they should not pay the wasted costs of the abortive hearing on 19 September assessed by HH Judge Wall QC at £1,000, I shall direct that Aaron & Ace shall pay those costs.
  4. Despite the fact that Mr Malik was able to argue the merits of the claim at the hearing, taking into account all the relevant facts and circumstances I am not prepared to grant relief from sanctions in respect of such serious and persistent breaches of the rules and court orders. The balancing exercise comes down firmly in favour of refusal of relief. I am not prepared to give permission for Mr Ali or for either of the Claimants’ parents to sign the statement of truth on the claim form. These proceedings will be struck out. The Claimants will suffer no undue prejudice from this, since their claim is likely to have failed even if the factual foundations for it had been in evidence before the Court.