Ejegi v Migrant Advisory and Advocacy Service [2011] EWCA Civ 715

Case No B2 / 2009 / 0341[2011] EWCA Civ 715
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON CIVIL JUSTICE CENTRE
(HIS HONOUR JUDGE D C MITCHELL)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 25th January 2011
Before
LORD JUSTICE WARDLORD JUSTICE MOSES
Between
EjegiAppellantMigrant Advisory and Advocacy ServiceRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
The Appellant appeared in person. for in person for The Respondent did not appear and was not represented.
Judgment
[1]The appellant in this case is a citizen of Nigeria who almost a decade ago applied for indefinite leave to remain in the United Kingdom. She was refused that indulgence and with the advice of the Migrant Advisory and Advocacy Service she appealed that decision. The Migrant Advisory and Advocacy Service provide help in immigration matters and are regulated pursuant to the Nationality and Immigration Act of 1999 by the Commissioner for Immigration Services.[2]The Migrant Advisory and Advocacy Service are the respondents to this appeal. They, pursuant to the code of practice laid down by the Commissioner, are supposed to act at no cost to those who seek their help but it appears that in this instance the Service and the gentleman acting for the appellant required the appellant to make some payment to them by way of donation, so called, and thus in the course of these protracted immigration proceedings the appellant made three payments to the service of £100, £200 and another £150. She was unsuccessful in the immigration tribunal and on appeal to the appeal tribunal and she complained to the Commissioner who conducted an investigation, heard from the Service in answer to the complaint and made a number of findings of which these are some:
"From the evidence before the Commissioner she [the Commissioner] concludes that the money paid to MAAS equates to legal fees. This is not permitted under section 84(4) of the 1999 Act. MAAS are reminded that this is a serious violation of the Act and will be further considered by your case worker"
Moreover and perhaps importantly the Commissioner made a number of findings that the code of conduct had been breached because "MAAS failed to demonstrate the necessary knowledge and competencies to meet their client's needs". That finding is repeated elsewhere in the conclusions.[3]In the result, having made those criticisms, the Commissioner concluded in this way:
"The Commissioners have the strong view that MAAS should issue an immediate refund to Mrs Ejegi."
[4]She therefore sought the refunds of the payments she had made, they were refused, she applied to the Citizens Advice Bureau for help and in the result brought this claim in the county court. It is a home made claim, it is difficult to follow in all its respects, it refers to the payments made and, says AF, the case worker dealing with her case "failed to demonstrate his claimed legal expertise in immigration matters and thereby extorted the total sum of £450 from the claimant by wrong advices channelled to his personal gains". Attached to that claim was the report from the Commissioner.[5]That matter came before Deputy District Judge Mendel in the Uxbridge County Court on 14 January 2008. Neither party attended before him. In the result he struck the claim out by virtue of the non-attendance of the appellant. The appellant apparently was delayed because of ill health and she arrived at the County Court later that day and had an opportunity to speak to the Deputy District Judge. Rather than immediately recall the order, if indeed it had been perfected, he advised her to make an application to set that order aside. And so she duly wrote on 23 January 2008 making her apologies to the court, giving reasons for not being punctual, namely the taxi she had ordered did not attend, she has arthritic problems which make her use of public transport difficult, she had lost her mobile phone and could not telephone to explain her difficulties. She says:
"Please forgive me and I should be grateful for your offer of a new date and I promise to be punctual. Thank you."
[6]That letter was placed before a listed judge who responded perfectly properly to the effect that the matter needed a formal application to be made. That letter was sent to her on 6 February. She complied by completing the formal application and submitting it on 7 March, attaching as had been suggested her letter of explanation to explain why she was entitled to the relief of setting aside that striking out order.[7]That application was heard before District Judge Wicks. He accepted her explanation and reinstated her claim in the small claims court. A date was duly given for the hearing of her claim and on 20 August 2008 Deputy District Judge Gilford (?) sitting in the Uxbridge County Court heard the claimant in person, the defendant did not appear (the defendant has appeared at none of the hearings that have been before the county courts and this court) and, having heard the claimant, the District Judge ordered the defendant to pay the claimant the sum of £450 on or before 10 September 2008. The county court file is in the court office, I have examined it, there is no record of a note of the Deputy District Judge Gilford's judgment and we do not know exactly upon what basis he proceeded. His judgment did not please the respondent, the respondent sought permission to appeal which was granted and the appeal was listed before HHJ Mitchell sitting in the Central London County Court. Once again the respondent as the appellant before that judge did not attend.[8]He granted leave on consideration of the papers in the court file and on the actual hearing he concluded that the appeal should be allowed. The way he arrived at that was of his own motion and without any application from MAAS. He allowed an appeal out of time -- and it was long out of time -- against the order made on the 17 June, ie the order to reinstate this case. How or why he did it is not entirely clear. He came to his own conclusion that the delay was excessive so that the appellant, Mrs Ejegi, could not show that she applied promptly and he considered furthermore that her claim was apparently without sufficient merit to allow it to be reinstated, but he did that off his own bat and without any application from MAAS.[9]The first question that arises therefore was whether he ought to have done so in the way in which he did. I am not at all persuaded that in the absence of MAAS he ought to have constructed fresh grounds for appeal and upheld it primarily on the basis that Mrs Ejegi had not acted promptly. She had, in the sense that she had written on 23 January making it perfectly plain what she wanted to do. True it is there was delay, then from 6 February or soon thereafter she had received the letter to 7 March when she made formal application but that delay was not so excessive that it was not within the discretion of the District Judge to forgive that delay and to allow her to proceed. Her claim was not so lacking in obvious merit that the District Judge should not eventually have given judgment in her favour, and the irony is that HHJ Mitchell allowed MAAS to appeal against the order of June when he heard the matter in January some seven months latter, yet he found that this lady's delay of a matter of weeks was so excessive that she should be struck out from putting her claim before the court. In my view, and with great respect to the judge, he was in error. He ought to have confined himself to a consideration of what was before him, namely the judgment which had been entered in the claimant's favour by the judge who had heard her if not the respondent. There was no transcript of that judgment and no basis therefore upon which he ought to have concluded that that was plainly wrong. Deputy District Judge Gilford was perfectly entitled to hold, if indeed he did so hold, that this claim was in truth a claim brought against MAAS for the negligent conduct of her affairs.[10]That indeed is the way MAAS probably viewed the matter because in their written response to this court they are at pains to say in respect of each and every one of these disputed payments that the court will agree that there is no basis for finding that this action was negligent. They were well aware that their competence was in question, that was the basis upon which the Commissioner had found against them, the Commissioner's report was before the judge, he had ample evidence before him on which to conclude, if indeed he did so conclude, that the services were so negligent that the money ought to be refunded and so in my judgment HHJ Mitchell, doing his level best in difficult circumstances to do justice between the parties which was his expressed endeavour, erred in both respects.[11]I would therefore allow the appellant's appeal with the result that the order of Deputy District Judge Gilford is restored and the result is that the defendant must pay the claimant the sum of £450.[12]I agree.

Order

Appeal allowed