“THIS APPLICATION WAS A SIGNIFICANT ABUSE OF THE PROCEDURES … AND SHOULD NEVER HAVE BEEN MADE”: THE ADMINISTRATIVE COURT, DUTIES TO THE COURT AND THE HAMID JURISDICTION

In  the judgment today in  DVP & Ors, R (On the Application Of) v The Secretary of State for the Home Department [2021] EWHC 606 (Admin) the Administrative Court exercised considered a case referred to it under the “Hamid” jurisdiction – to regulate its own procedures and the duties owed to it by legal professionals.  The judgment contains important lessons, not only in relation to procedure in the Administrative Court, but also in relation to duties owed to the court and, in particular, when making any kind of without notice applications.

“This application was a significant abuse of the procedures made available for urgent applications in the Administrative Court and should never have been made. Moreover, the claimants’ legal team seem to have misunderstood or to have overlooked their duty to make full, fair and accurate disclosure of all material information to the court; and in consequence, they failed to comply with their obligation of candour.”

THE CASE

Six claimants issued proceedings using the “urgents” procedure in the Administrative Court.  These applications were dismissed. The judge who heard the applications was concerned about the way in which they had been conducted by the lawyers involved and exercised the “Hamid” jurisdiction with the lawyers being called upon to explain their conduct.

THE JUDGMENT OF THE COURT

1. 1. This is the judgment of the court.

1. 1. The Hamid jurisdiction is a facet of the court’s jurisdiction to regulate its own procedures and to enforce the overriding duties owed to it by legal professionals: see R (Hamid) Secretary of State for Home Department [2012] EWHC 3070 (Admin). Although the Hamid jurisdiction originated in the field of immigration, it is not confined to immigration or even to public law claims: see, for example, Gubarev v Orbis Business Intelligence Ltd [2020] EWHC 2167 (QB) and R (Wingfield) v Canterbury City Council [2020] EWCA Civ 1588 at para 11.

1. 1. This present case has been referred to the Divisional Court under the Hamid jurisdiction. This reference arises from an order made by Swift J on 30 November 2020, following an urgent application that had come before him on that day in the Administrative Court, which related to six different claims for judicial review, all of which had been issued in materially identical terms. This hearing is not concerned with the underlying merits of the claims. It concerns only the issues which gave rise to the need for the court to invoke the Hamid jurisdiction.

1. 1. In his order, Swift J identified significant concerns about the conduct of the claims by Duncan Lewis LLP. Central to those concerns was the use (or abuse to be more precise) of the ‘urgents’ procedures in the Administrative Court. There were a number of particular features of this on which it has been necessary to focus, namely whether the application that was made was urgent; the failure to provide the required information to the court; the fact that the application for interim relief purported to be made on behalf of people other than the claimants, when there were no instructions to do so and breaches of the duty of candour.

1. Following the order made by Swift J, Duncan Lewis were sent what is called a “show cause” letter by the court. Mr Toufique Hossain, the lead solicitor at Duncan Lewis with responsibility for the six claims, and Mr David Head, the Director of Compliance at Duncan Lewis were then directed to appear before the Divisional Court to address the concerns identified in Swift J’s order and to give reasons why they should not be reported to the Solicitors Regulatory Authority. At this Hamid hearing, Duncan Lewis have been represented by counsel who were instructed by Duncan Lewis in relation to the judicial review claims and in the application which came before Swift J on 30 November 2020. We heard from Ms Stephanie Harrison QC who spoke on their behalf.

URGENT APPLICATIONS IN THE ADMINSTRATIVE COURT

There is very specific guidance given in relation to urgent hearings in the Administrative Court, this was not followed.

1. 1. It is of the utmost importance that this limited resource is not abused, and over the years, the courts have developed rules to ensure this does not occur. If cases that are not truly urgent displace those that are, this will have serious consequences for litigants who have a good reason for applying for urgent relief. Two things flow from this. First, those seeking to make use of the ‘urgents’ procedures are under a duty to the court to satisfy themselves that the application they are considering really is urgent and to adhere, to the letter, to the rules of court which protect the procedure from abuse. This has always been the case. The fact that case papers can now be filed electronically, has not altered the position. Secondly, any abuse of the ‘urgents’ procedures will not be tolerated by the court and will be met with appropriate sanction.

1. 1. The Administrative Court Judicial Review Guide 2020 (the Guide) is essential reading for all those who practice in the Administrative Court. It sets out the practice for urgent cases and applications for interim relief in sections 14 and 15, at pages 70 to 78. The Guide reminds all litigants and their advisers that for urgent cases, they must: (a) clearly set out the reasons for urgency on the face of the application notice; (b) comply with their duty of candour which requires them to disclose all relevant material to the court (para 14.1 of the Guide); and (c) comply with the Civil Procedure Rules, Practice Directions and other obligations owed to the court (paras 15.1.2 and 15.1.3 of the Guide).

1. 1. The duty of candour in this context, means that the claimant must disclose any relevant information or material fact which either supports or undermines his case. Material facts are those facts which it is material for a judge to know when dealing with the urgent application. The duty requires the claimant to make the court aware of the issues that are likely to arise and the possible difficulties in the application or underlying claim. The information the claimant puts before the Administrative Court in support of an urgent application must be presented in a fair and even-handed manner, and in a way which is not designed simply to promote his own case. The court must be able to rely on the claimant’s compliance with the duty of candour, as urgent applications in the Administrative Court are usually made on very limited notice to a defendant, and an exceptionally urgent application may be made without any notice to the defendant at all.

1. The court will set aside an order obtained without full notice to the other party, if there has been a breach of the applicant’s duty of candour to the court, even if the order might otherwise have been justified. This principle applies to the Administrative Court, as it does to every other jurisdiction. Amongst other reasons, this is done to deter the misuse of the court process: see for example R (SB (Afghanistan)) v Secretary of State for the Home Department [2018] 1 WLR 4457, CA at para 79 (4471F-G), per Lord Burnett of Maldon CJ.

USE OF THE URGENT PROCEDURE IN THE CURRENT CASE

The solicitors involved issued six applications.   The respondent put written submissions before the court in response.  There was an, incorrect, assertion, that the respondents were acting incorrectly. This misapprehension was corrected in robust terms.

1. 1. Just over 20 minutes after the SSHD’s submissions had been filed with the court, solicitor 2 emailed the court to say:

“The Defendant has unusually filed submissions in reply to an ex parte application for which there is no procedural provision. Nevertheless, and in the interests of fairness and we hope, to assist the Judge, we are going to send a reply within the next hour, and we ask you not to send the file to the Judge until we have provided a response to these submissions of the Defendant.”

1. 1. Shortly after that, submissions settled by counsel, in reply to the SSHD’s submissions were filed with the court by the claimants. Paragraph 1 said this:

“The [SSHD] has filed submissions on the claimants’ application for expedition and case management, at the eleventh hour. There is no procedural provision for her to interpose in this way. In any event, the submissions filed are unnecessary: the Claimants are not seeking any substantive interlocutory relief by way of the application filed; rather they simply seek case management and directions and for an inter partes oral hearing to decide the question of interim relief. It is expressly accepted within the application filed by the claimants that the court will wish and need to hear from the [SSHD] when determining the question of interim relief. That is the proper venue at which the [SSHD] may make the submissions she seeks to prematurely ventilate now.”

1. 1. Contrary to what was said by solicitor 2 and by counsel, the court is always assisted on an urgent application if it has been informed by the defendant of its position. This is a matter that should be obvious to any legally qualified person conducting litigation, but in any event, is made clear in the Guide itself (see para 19 above). The position taken therefore by the claimants’ legal team, both solicitors and counsel, was inappropriate and wrong.

THE DECISION OF THE ADMINISTRATIVE COURT ON THE INITIAL HEARING

1. 1. The papers were placed before Swift J, the judge in charge of the Administrative Court. On 30 November 2020, the judge made the following order on the claimants’ application for interim relief and expedition: (1) the application for interim relief was refused; (2) the application for expedition was refused; (3) the SSHD had to serve and file her acknowledgment of service in accordance with CPR part 54.8; (4) the papers relating to the claimants’ application for urgent consideration were referred for consideration under the Hamid jurisdiction.

1. 1. The judge’s reasons laid bare the serious defects in the application for extremely urgent relief which came before him, and we set them out in full:

“[1.] The claimants’ claims relate to detention (pursuant to Immigration Act powers) at a former military camp at Penally in Wales. The claims were filed on 26 November 2020. By an application under the urgent application procedure the Claimants sought interim relief in the form of orders (a) requiring assessment of their health needs (and those of others at Penally Camp); (b) requiring their transfer from Penally Camp (and the transfer of others who are disabled or have specific health needs); (c) prohibiting the Secretary of State from transferring to Penally Camp any other person who is subject to immigration control; and (d) declaring that the Secretary of State has no power to impose a curfew requirement on those who live at Penally Camp. The claimants also requested an order for expedition of their claims.

[2.] The claimants ought not to have made the applications for urgent consideration. None of the claimants is at Penally Camp. All bar the sixth claimant were transferred to other accommodation as long ago as 29 October 2020 (see variously, the Statement of Facts and Grounds at §§37, 39, 41, 44, and 46). The sixth claimant left Penally Camp on 18 November 2020 (see Grounds at §49). In the premises, there is no prospect that an application for interim relief will succeed, and no need at all for expedition of these claims.

[3.] The claimants contend that they bring these claims “on behalf of” others who remain at Penally Camp. That contention is fallacious. Neither the claimants nor their legal representatives act on behalf of any other person who is presently accommodated at the camp. The judicial review procedure exists to resolve claims brought by specific claimants on matters affecting them, not to conduct general inquiries into matters which may be of public interest. That is a fortiori when it comes to applications for interim relief. The lawyers whom the claimants instruct have no means of knowing the instructions of others at Penally Camp.

[4.] If any of the claimants’ claims survived their removal from Penally Camp, there is no reason why any now require expedition.

[5.] The claimants’ applications under the urgent consideration procedure should be considered under the Hamid jurisdiction. The claimants (even the sixth claimant) had left Penally well before the application was made. Moreover, the form N463 made no mention of this. The “Reasons for Urgency” section simply read “see application for interim relief attached”. That application appears to have comprised only (a) a draft order; and (b) a draft order for interim relief. It ought to have been clearly stated on the form N463 itself that none of the Claimants was resident at Penally. I can see no such statement on the form. Taken together, the claimants’ claims ran to several thousand pages of documents. It is unsatisfactory, on applications for urgent relief, for matters central to the application not to be “front and centre” on the face of the application. It is also striking that the claimants’ solicitors/counsel seemed to take offence when the Secretary of State – entirely understandably – provided a short letter in response to the application for interim relief (see, for example the terms of the “reply” document filed shortly after). It was only that letter that brought the Claimants’ circumstances clearly to the Court’s attention.”

THE DECISION OF THE ADMINISTRATIVE COURT UNDER THE “HAMID” JURISDICTION

The court considered the issues and made considerable criticism of the lawyers involved.

1. 1. We have identified what is required when an urgent application is made to the Administrative Court, and what actually happened in this case. We can address therefore the specific issues to which this case gives rise and our conclusions in respect of them quite shortly. In summary however, it is apparent that there was a significant abuse of the ‘urgents’ procedures in this case.

(a) Lack of exceptional urgency or urgency

1. 1. At the hearing, in response to a question from the court, Ms Harrison submitted the matter had become exceptionally urgent on 18 November 2020, but could provide no cogent reason why this was so. Ms Harrison was also asked to identify the trigger for the urgent application. She pointed to the conclusion of the pre-action correspondence and, in particular, the GLD’s letter dated 19 November 2020, which said that the SSHD would not be transferring any people who were not Duncan Lewis’ clients out of the Penally Camp. In the end she accepted there was no distinction between the trigger for the issue of the claimants’ claims, and the issue of the urgent application.

1. 1. The GLD’s letter of 6 November 2020 made it abundantly clear that the SSHD would not be transferring all asylum seekers out of the Penally Camp in accordance with their requests. If this matter was ever urgent, it became urgent on 6 November 2020 when the GLD’s letter of that date was received by Duncan Lewis. In reaching this conclusion, we express no view about the underlying merits of the claims or the issue of standing. As it is, there was nothing urgent, let alone exceptionally urgent about the claimants’ request for urgent consideration filed as it was with the court almost three weeks’ later, on 26 November 2020. This was a clear abuse of the procedures for urgent applications.

(b) The Failure to complete the form N463

1. 1. Ms Harrison accepted Swift J’s criticisms of the contents of the form N463. She acknowledged that it had been a fundamental mistake on the part of Duncan Lewis to fill in this form by cross-referring to other documents. She accepted this made it extremely difficult for the court to find the material information and understand what the application was about. Mr Hossain accepted full responsibility for this as he was responsible for overseeing the completion of form N463 by solicitor 2.

1. 1. Quite apart from that however, the document which was cross-referenced in this case did not contain the relevant information either. As we have said, solicitor 2 had cross-referred to the application for interim relief when completing section 1 of the form N463 which required identification of the reasons for urgency. We asked Ms Harrison to show us where on the application for interim relief the reasons for urgency were set out. She was unable to do so. Indeed, she was unable to take the court to any document in the electronic bundle which identified the reasons why the claimants’ application was urgent, let alone exceptionally urgent. This is not surprising given there were no reasons to justify an urgent application at all.

1. 1. It follows that section 2 of the form, should not have required the court, as it did, to consider the form N463 immediately and the application for interim relief within 3 days.

1. 1. As for section 3, there was significant delay in making the application, which was not identified, let alone explained. As for the question of notice to the SSHD, the information given simply cross-referred to Tab E of the electronic bundle which ran to some 236 pages, comprising 15 different items of correspondence. Moreover, notwithstanding the extensive pre-action correspondence, to some of which we have referred, section 3 contained no summary of the SSHD’s position on the application, and, in particular, her stance that it was “misconceived”. The best Ms Harrison could do in this context, which was not good enough, was to draw attention to one sentence in the application for interim relief and expedition which said that the SSHD insisted that the claimants had no standing.

1. 1. Section 4 failed to set out the interim relief sought and why. Rather, it simply cross-referred to the application for interim relief and draft order. This in itself was wrong. What the claimants were actually asking the court to do, by seeking urgent consideration, was to give directions in relation to the application for interim relief, namely expedition and service of the SSHD’s response and summary grounds of defence within seven days, rather than grant the substantive relief sought in the application.

1. 1. Ms Harrison informed the court that the form N463 had not been reviewed before it was sent out. It should have been. Properly supervised, solicitor 2 could not have signed the confirmation as the claimants’ advocate. This is because he had failed to disclose any of the relevant facts in the application.

(c) Purporting to act without any instructions

1. 1. Ms Harrison submitted that the claimants brought the claim on behalf of others as part of a “systemic and generic challenge” to, amongst other things, the way people were transferred into the Penally Camp. She submitted this was an exceptional case, notwithstanding the fact that the claimants had moved out of the Penally Camp on 29 October 2020 (first to fifth claimants) and 18 November 2020 (sixth claimant). She referred in her submissions to nine additional clients identified by Duncan Lewis, whose details were set out in a list filed with the full claim papers. Ms Harrison accepted that it would have been necessary for pre-action letters to be written to the SSHD seeking judicial review of the decision transferring the nine individuals to the Penally Camp. In a letter written to the court after the Hamid hearing, Duncan Lewis said that these nine additional clients had signed “authority forms” confirming that they wished Duncan Lewis to act for them.

1. 1. However that might be, Ms Harrison had informed the court on instructions at the hearing, that when the urgent application was made, Duncan Lewis did not know how many people there were in the Penally Camp, and they did not know how many people in the Penally Camp had vulnerabilities. However, Ms Harrison submitted “there were significant numbers of people who had or were likely to have the significant difficulties experienced by [Duncan Lewis’] clients”. She submitted it was evident that these other people were likely to suffer adverse consequences and, as a result, the claimants’ solicitors and counsel thought it appropriate to bring “the claims that were fully prepared”. It is difficult to avoid the inference that the trigger for the application was the preparedness of Duncan Lewis to issue it, regardless of the position of the SSHD, and regardless of the position of the claimants.

1. 1. Following the hearing, Duncan Lewis drew our attention to an ITV news report included in the electronic bundle which reported that on 6 November 2020 there were 171 people at the Penally Camp. On 8 December 2020 the number of people had apparently reduced to 143 people.

1. 1. On 26 November 2020, the date when the claims were issued, Duncan Lewis were instructed by the claimants, but they had all been transferred out of Penally Camp some time earlier. There were nine “claimants in waiting” at the Penally Camp ready to instruct Duncan Lewis, but they were not the claimants. There were more than 100 other people at the Penally Camp who had not made any contact with Duncan Lewis at all and had not instructed Duncan Lewis to act for them. Duncan Lewis had no means whatsoever of knowing what the interests of all these other people were. This point had been made time and again by the GLD in the pre-action correspondence, but Duncan Lewis ignored it. Nevertheless, Ms Harrison submitted that all solicitors and counsel instructed on the case were entitled to make a “judgment call” in deciding whether to issue the urgent application, and that this decision was not unreasonable or wrong.

1. 1. We reject that submission. The claimants were not facing irreversible action as a result of any conduct on the part of the SSHD. Five of them had been transferred out four weeks before, and the sixth was transferred out a week before, the urgent application was issued. An application for directions on the claimants’ application for interim relief (which sought the transfer of people out of the Penally Camp, and to prevent people being transferred into the Camp) was an application which did not concern the claimants in any way. It was utterly hopeless and bound to fail.

1. 1. Further, all lawyers involved were obliged to comply their professional obligations. Duncan Lewis were not instructed by all the people in the Penally Camp, and they could not so act without instructions. This is fundamental. The court relies on the integrity of solicitors and counsel complying with their professional obligations, including that they act only on the instructions of those clients they represent.

1. 1. Since the hearing in this case, the decision in R (KMI) v The Secretary of State for the Home Department [2021] EWHC 477 (Admin) has been handed down. The court did not decide the question of jurisdiction and the appropriateness of interim relief expressed as class relief. However, at para 39 the Court made the following observation:

“An injunction is an order by a court to a party to proceedings requiring him to do or to refrain from doing a particular act. First, on any analysis, it is appropriate that the persons intended to be the beneficiaries of any order are clearly identified and that the terms of any injunction are clear as to what the defendant is and is not required to do. It would not, generally, seem desirable to make orders where the beneficiaries or the terms are unclear, or where those issues would need to be subject of argument, nor would that appear fair to the defendant who is required to comply with the order. Further, lack of clarity could create difficulties over the enforcement of orders. Breach of an order can be made the subject of application for contempt in certain circumstances: see Mohammad v Secretary of State for the Home Department [2021] EWHC 240 at paragraph 26.”

1. 1. For reasons we have explained, there was no clarity at all in relation to the alleged beneficiaries of the urgent relief which the claimants sought.

(d) Breach of duty of candour

1. 1. In presenting all relevant facts to the court on the form N463, the claimants and their professional advisors, were required to comply with the duty of candour. As we have explained, this required the claimants’ advocate to disclose on the form any relevant facts which were adverse to the claimants’ case, so that all relevant facts were presented on form N463 in a fair and even-handed manner. Therefore, any points which could have been made in the SSHD’s favour should have been on the form.

1. 1. Form N463 did not identify:

a. that the claimants had all left the Penally Camp, or the dates on which they had left;

b. the significant delay in making the application, or the reasons for any such delay;

c. that there had been extensive pre-action correspondence with the GLD, solicitors for the SSHD, and that the SSHD maintained the application was misconceived as Duncan Lewis were not instructed by all the other people at the Penally Camp.

1. 1. There was no excuse for not putting this information on the form. In the circumstances, Duncan Lewis failed to comply with their duty of candour, a failure for which Mr Hossain is responsible.

1. 1. In his email to the court of 27 November 2020, solicitor 2 recognised, in terms, that this was a without notice application. He, and counsel in their written submissions, complained that the SSHD had filed written submissions in answer to it. Any without notice application on the part of the claimant carries with it an obligation to comply with the high duty to make full, fair and accurate disclosure of all material information to the court and to draw the court’s attention to any significant factual, legal and procedural aspects of the case. The claimant’s advocate has particular duty, so far as it is consistent with urgency of the application, to ensure this obligation is complied with. Duncan Lewis and counsel in this case were seemingly oblivious to these obligations, or their importance.

1. The complaint by Duncan Lewis and counsel when the SSHD filed short written submissions in answer to the claimants’ application (that this had been done at “the eleventh hour” and that there was “no procedural provision for her to interpose in this way”) was telling. The claimants and their legal advisors had singularly failed to comply with their own obligations to place critical information before the court; and then objected, on purported procedural grounds, to the SSHD so doing. In the end, it was the SSHD’s submissions, and only those submissions, that informed the judge “up front” that none of the claimants were at the Penally Camp and identified why the claimants’ so-called urgent application to the court, was not in fact urgent at all.

CONCLUSION

1. 1. It is essential that the court can have confidence in the thoroughness and objectivity of practitioners, solicitors and counsel, who make urgent applications in the Administrative Court. It follows that all who do so must understand their professional obligations, must prepare such applications with care, must comply with the requirements set out in the Guide and set out the information they are required to provide in the form N463.

1. 1. This application was a significant abuse of the procedures made available for urgent applications in the Administrative Court and should never have been made. Moreover, the claimants’ legal team seem to have misunderstood or to have overlooked their duty to make full, fair and accurate disclosure of all material information to the court; and in consequence, they failed to comply with their obligation of candour.

1. 1. The court will not tolerate the abuse of its process, and will not hesitate to refer those who do so, to their professional regulators. We have given very careful consideration to doing so here.

1. In determining what should now be done, we have regard to the fact that Mr Hossain and counsel have all accepted responsibility for what happened and have apologised to the court. We also have regard to the regret Ms Harrison expressed on behalf of the lawyers concerned, that Swift J’s criticisms of their application had necessitated a hearing before the Divisional Court when the court is under significant pressure in the midst of a pandemic. Mr Hossain too personally expressed his profound regret for his failures and those of Duncan Lewis; and said that training and procedures had been put in place to ensure such failings did not occur again. Mr Hossain told us that he had learned from these failings and, annexed to his witness statement a training note produced for all solicitors working in public law at Duncan Lewis. We accept these apologies and have concluded it is sufficient in this case for the court’s disapproval of what happened to be marked by this public judgment.