Noureddine, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1707 (Admin)

Case No CO/1189/2012[2012] EWHC 1707 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 22 May 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF NOUREDDINEClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr G Denholm (instructed by Deighton Pierce Glynn) appeared for ClaimantMiss L Jones (instructed by J Vevcover) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: On 7 June 2000, the Claimant giving the name Mohammed Aldohi and claiming to be a Tunisian/Italian with a date of birth of 21 February 1977 was found in the back of a lorry in Lincolnshire. He claimed asylum at Boston Police Station. On 20 June 2000 he claimed to be Italian. On 7 July 2000 he was issued with a form on which to claim asylum, an SEF, and requested to return it by 23 July. He did not do so therefore his claim was refused for non-compliance on 9 November 2000. But he did return the form or a form claiming asylum in a different name, Mohammed Dough, a Tunisian born on 21 February 1977. This caused some confusion but eventually led to the asylum decision being retaken on 14 June 2001. The claim was refused, a one stop notice was served. He did not appeal. So on 12 October 2001 as Mohammed Dough, he was removed to Tunisia. On arrival he claimed to be Algerian and so was returned to Heathrow.[2]On the day of his return 13 October 2000 he was interviewed by an immigration officer. He claimed to be an Iraqi and then an Italian and then an Algerian. He said his father's name was Abdullah Dough and he did not know his mother's name. He said he was wanted by the police in Algeria because the Algerian State was fighting his family. He was then detained and interviewed on the next day 14 October. On an unknown date soon after papers relating to him were sent to the Algerian consulate in London. On 3 November 2001 the Algerian consulate said:
"The information provided by detainee are erroneous."
[3]On 13 November 2001 the defendant claimed asylum in the name of Karim Bilal. He said that both his parents had been killed in a car crash in Italy. He named them, Mohammed Dough and Quizan Latifa, both Tunisian.[4]On 23 November 2001 the Claimant as Karim Bilal said that he was an Algerian and that the Government of Algeria had killed all his family.[5]On 26 November 2001 as Karim Bilal, he told an immigration officer -- in fact the same one who had interviewed him on 13 October 2001 -- that he was wanted by terrorists in Algeria.[6]On 3 December, again as Karim Bilal, he told a different immigration officer that Islamic terrorists wanted to kill him and had murdered his parents. Soon after an application for an emergency travel document was submitted to the Algerian Embassy in London.[7]On 6 December 2001 the application was rejected. On 12 December 2001 he was interviewed again for an emergency travel document in the same name Karim Bilal and an application was resubmitted to the Algerian Embassy; it too was rejected on 22 February 2002.[8]On 14 April 2002 an application for an emergency travel document in both of the names which he had used -- Bilal and Dough -- were rejected by the Algerian Embassy.[9]On 7 June 2002 the Algerian Embassy said it could find no trace of either name. On 26 June 2002 the asylum claim which he had made in the name Dough was refused and certificated as "manifestly fraudulent." The Claimant appealed.[10]Meanwhile on 12 February 2003 when reinterviewed by an immigration officer he said he was Kabilie Berber from Tizio Ouzarte. He insisted he was Mohammed Dough. He said he had left Algeria aged 16, in other words in 1993 or 1994, and gone to Italy and to Greece. He said he had come to the United Kingdom by train from Italy. He said the police would kill him if he was returned to Algeria, not for any specific reason but because he had heard that that was what the police did to returning Algerians.[11]On 13 February 2003 his appeal was dismissed by an adjudicator. By that stage all attempts to return him to Algeria had failed and despite the dismissal of his appeal he was released on 12 March 2003.[12]On 20 August 2003 he was detained by police in Birmingham. He claimed asylum again but this time in the name of Mohammed Ali, date of birth 10 May 1987.[13]He said he arrived from France three days before on a false French identity card. He was fingerprinted and his fingerprints matched those of Aldohi, Dough and Bilal. Accordingly, although the Claimant says now that he has no recollection of making any such claim, I am satisfied that it was he who was detained and did make that fourth claim for asylum in a fourth name.[14]He was granted temporary release. He was told to report on 21 August 2003 to the Midlands Enforcement Unit; he did not. This was the first occasion upon which having been granted temporary release or admitted to bail he absconded.[15]On 10 November 2003 his asylum claim was deemed void because he had made multiple applications.[16]On 17 November 2003 he was arrested but again released on temporary release. On 20 November 2003 he was encountered at Dover. He had been listed as an absconder. He said he was attempting to leave the United Kingdom but he did not do so. That may or may not have been an act of absconding but because it is unclear I discount it.[17]On 23 November 2004 the Algerian Embassy said that he was not an Algerian.[18]On 27 March 2005 the Claimant having disappeared from view was arrested at Folkestone in possession of a stolen Polish passport with which he was attempting to leave the United Kingdom.[19]On 4 April 2005 he was convicted at the local magistrates' court of handling the stolen passport and committed for sentence to Maidstone Crown Court, where on 5 May 2005 he was sentenced to 12 months imprisonment for the offence and recommended for deportation.[20]On 9 May 2005 at Cardiff Magistrates' Court, he was sentenced to two months' imprisonment for an assault on a police officer; the sentence to run concurrently with that imposed at Maidstone Crown Court.[21]On 26 July 2005 the Claimant was again interviewed by an immigration officer. He refused to supply any details about his history, what is known in the jargon as bio-data.[22]On 23 September 2005 his criminal sentence ended and he was re-detained under immigration powers. Not much happened until 13 July of 2006 when the Claimant was interviewed again by an immigration officer.[23]On 20 July 2006 an application for an emergency travel document was made to the Algerian Embassy. On 4 September 2006 a birth certificate was sent to the Algerian Embassy, that had been provided to the immigration officer by the Claimant.[24]On 7 February 2007 the Algerian Embassy told the Home Office that investigations into the Claimant in the name of Dough had been unsuccessful and an emergency travel document was refused.[25]On 14 May 2007 notice of intention to make a deportation order was served on the Claimant. He did not appeal against that decision.[26]On 20 June 2007 a further application for an emergency travel document was again refused by the Algerian Embassy.[27]On 17 August 2007 the deportation order was signed. On 19 August it was served on the Claimant. On 30 October an order for admission of the Claimant to bail was made. On the same day he provided details of the individuals that he described as his ex-employers in Algiers, Farahat and Mouh, and their addresses and telephone number. He was released on bail on 8 November 2007 with reporting conditions. It should come as no surprise to learn that on the first day on which he was to report, 14 November, he did not do so and so absconded for the second time.[28]He was not rediscovered until 25 February 2009. He was arrested as an absconder in Leeds. He has been detained ever since.[29]This claim challenges the lawfulness of his detention during part of that time and the lawfulness of his continued detention.[30]On 30 May 2009, yet another application for an emergency travel document was made to the Algerian Embassy. This produced a prompt response on 1 June. The embassy refused to interview the Claimant because the name on the application form -- the request for the emergency travel document -- was different from the name on the birth certificate supplied.[31]On 19 July 2009 the Claimant refused to attend a visit suite for language analysis.[32]On 4 August 2009 the case was transferred to the UKBA's Country Specialist Investigation Team. Things then started to move more quickly.[33]On 10 September 2009 two requests were made by a caseworker to interview the Claimant; he refused both requests.[34]On 15 December 2009 officers from the country specialist investigation team visited and interviewed the Claimant. The Claimant gave them details about himself. He repeated his name, he gave a telephone number for his ex-employer, a different man from the two that he had given before, a man named Abdullah in Algiers and said that he should have Claimant's identity document. He said he had spoken to Abdullah about it six weeks before.[35]On 21 January 2010 help was sought from the Foreign and Commonwealth office, in particular the British Embassy in Algiers.[36]On 26 January 2010 the Foreign and Commonwealth Office reported that the telephone number for Abdullah was out of order and the address was incorrect. Another telephone number was given by the Claimant and an address for a third employer, both of which were provided to the British Embassy in Algiers.[37]On 22 March 2010 the British Embassy told UKBA that the birth certificate was not authentic. They had established that it was not because an NGO had visited the Wilaya -- the administrative district -- in which the Claimant claimed to have been born, and the falsity of the birth certificate had then been discovered.[38]On 24 March 2010 the Claimant was seen by the Assisted Returns Team. He was not interested. He said that the Algerians would not issue an emergency travel document to him, that the Algerian State had problems with his family and the Algerian Embassy had told him they would refuse to issue an emergency travel document for him.[39]Having drawn a blank with the Algerian authorities, the UKBA then turned to SOCA. On 14 April 2010 SOCA's assistance was sought to conduct inquires in North Africa by Interpol. An email to that end was sent on 21 April 2010, and a chasing email a month later on 24 May.[40]On 3 June 2010 the Claimant refused to attend an interview at the Algerian consulate.[41]On 18 June 2010 UKBA sought Foreign and Commonwealth office confirmation that the birth certificate was not authentic and asked if they had been able to contact the third employer mentioned in the interview of 26 January 2010.[42]On 20 July 2010 the process of asking Interpol to conduct a search was set in train by a UKBA duty officer's request to "control" and was then sent on an unknown date soon afterwards to SOCA.[43]On 2 August 2010 SOCA asked the duty officer for digital fingerprints and a risk assessment from. The following day, 3 August, the risk assessment form was provided and SOCA were invited to obtain digitised fingerprints from the Police National Computer which it seems they did.[44]On 31 July and 16 September 2010 chaser emails had been sent to the Foreign and Commonwealth Office to the British Embassy in Algiers.[45]On 20 September 2010 the British Embassy in Algiers said it would not pursue these inquiries further because the birth certificate had been established to be fraudulent.[46]On 21 October 2010 SOCA reported the first bit of positive news which contains something that was likely to be true about the Claimant: Algerian Interpol had matched the fingerprints provided with Noureddine Bitti, the name in which the Claimant brings this claim, a Moroccan citizen.[47]On 25 October 2010 the UKBA duty officer asked SOCA to check the details provided by the Algerians with the Moroccan authorities.[48]On 27 October 2010 a letter before claim was sent in this case in the name Mohammed Dough.[49]The current position was set out by the Claimant's solicitors:
"The current position therefore appears to be as follows: Mr Dough has provided documentary evidence as his identity and nationality in the form of a birth certificate and this has been with the Home Office since at least September 2006, but probably earlier when it was sent to the Algerian authorities in support of an application for an ETD. The Algerian authorities refused to document Mr Dough and have done so consistently now for a period of at least 3 years. "
You are continuing to pursue ETD applications despite the position of the Algerian authorities and despite the very lengthy detention of our client."[50]On 27 October the British Embassy confirmed again that the birth certificate supplied was false. On 1 November 2010 the UKBA duty officer asked SOCA to try to get more information from the Algerians. On 9 November 2010 UKBA responded to the letter before claim and they told the Claimant's solicitors about the unsuccessful attempts that have been made to investigate and confirm the false details provided by him and told them for the first time of the fingerprint match with Noureddine Bitti.[51]On 15 December 2010 a chaser email was sent to SOCA. On 17 November SOCA said that there had been no response yet from Morocco, but they would repeat their request to the Moroccan authorities.[52]On 2 February 2011 SOCA told the UKBA of the Moroccan response which they quoted:
"Re your letter... of 17 December 2010 concerning the identity of Dough Mohammed, we wish to inform you that the fingerprints submitted are a match to those of Moroccan national Bitti Noureddine born 21 February 1977 in Rabat. "
He is known to our criminal files as a result of a case of illegal immigration in 2000."[53]On 10 February 2011 the British Embassy in Rabat said that it was unable to help with bio-data for the Claimant. On the same day UKBA wrote to the Claimant's solicitors advising them of the Moroccan response and saying that the Claimant would be visited and that attempts would be made to obtain bio-data from him.[54]On 14 February 2011 the Claimant's solicitors wrote back to UKBA requesting an explanation of, "Why is it now believed that the client is Bitti Noureddine?"[55]On 18 February UKBA wrote to the Claimant's solicitors saying that no emergency travel document application had yet been made but "we continue to try to obtain sufficient bio-data to effect your client's deportation to Morocco."[56]On 11 March 2011 the Claimant's solicitors confirmed under the name Mohammed Dough that the Claimant was willing to be interviewed by Moroccan authorities.[57]On 18 March 2011 the UKBA responded to the Claimant's solicitor's asking what he would wish to discuss with the Moroccan authorities to which they received no reply. The correspondence appears to have ended then and was not resumed for another 9 months.[58]Meanwhile on 24 March 2011 the Claimant was asked to provide bio-data in a standard form. No response was received.[59]On 6 April 2011 UKBA officials visited the Claimant. He said that he was not interested in leaving voluntarily unless provided with £160,000 to do so.[60]On 20 April 2011 the Claimant provided fingerprints but not so-called "wet" fingerprints. It seems that the fingerprints provided would have been scanned.[61]On the same day he was asked again to fill in the bio-data form, but again did not do so.[62]On 31 May 2011 for the first time the Claimant admitted to UKBA officials that he was Noureddine Bitti. But he continued to refuse to provide the names and details of his parents. He said he had spoken to the Moroccan authorities who would not issue him with an emergency travel document.[63]I interrupt the account of events to observe that although the Claimant then for the first time admitted that he was Noureddine Bitti, it is by no means certain that that is his true name. All that has been established with certainty is that fingerprints matching those of the Claimant were obtained by the Moroccan police in 2000 from a man who gave that name and that similar fingerprints were held on records available to Interpol in Algiers.[64]There is evidence from Maria Gridley, the caseworker with the Country Special Investigation Team, responsible for the Claimant's case since November 2011, about the current state of play with regard to returns of detained foreign national prisoners to Morocco.[65]Negotiations are currently in train for a formal agreement by which it is hoped that the Moroccan authorities will routinely and relatively quickly issue emergency travel documents for those where they have a secure fingerprint match. These negotiations have only recently been resumed. They had been started some time ago and were believed by Miss Gridley to be underway when she first came into this case but had in fact stalled by May 2011 at the latest.[66]She says that accordingly she pursued a two track policy. She hoped that the negotiates would bear fruit but recognising that they might not, or might not do so within a reasonable time, undertook an application for an emergency travel document in the traditional and laborious way.[67]The first steps taken were those which I have already recited, the attempt to get the Claimant to provide bio-data, which must have been known to him, voluntarily. That was unsuccessful. Accordingly the next step was to obtain "wet" fingerprints from him.[68]On 8 June 2011 a request was sent to HMP Feltham where the Claimant was detained for wet fingerprints to be obtained. They were apparently obtained sometime between 8 July and 14 July 2011 and sent to the UKBA but must have been misdirected because a further request was made and further wet fingerprints were obtained on 29 July 2011; they were received by UKBA on 4 August 2011.[69]On the same day they were submitted to Moroccan consulate with the description of what was known about the Claimant. "Mr Noureddine refuses to comply with our request to provide supporting evidence of his Moroccan nationality. He has refused to provide us with the name of his parents or his last place of residence in Morocco. Mr Noureddine states that he is from Rabat but will not divulge further information. "A set of Mr Noureddine's fingerprints are attached to this application. His fingerprints have been sent to the Moroccan police authorities in Rabat. They have confirmed that the fingerprints are those of Mr Noureddine born in Rabat. He has previously come to their attention as he has attempted to leave Morocco illegally in 2000. A copy of the note from the Moroccan police authorities is attached which confirm the identity and nationality details from Mr Noureddine."[70]UKBA's current guidance for Moroccan cases notes that requests for emergency travel documents are dealt with more quickly if full bio-data is provided:
"Comprehensive bio-data assists the Moroccan consulate in verifying the subject. This should include addresses, relatives names and telephone numbers, birth certificates can be easily obtained by the family in Morocco. The family can obtain a birth certificate by taking the family book or birth certificate number to the town hall. Documents can then be provided to the Moroccan consulate in London either through our embassy or the consulate in Rabat."
[71]On the assumption which may be true that the Claimant has no close family member in Morocco, it is reasonable to infer that, as happened in Algeria, an NGO may be willing to make a visit to the place of birth of the Claimant if he correctly identifies it.[72]The guidance goes on to note that where originals or copies of supporting evidence exists it takes six months plus to obtain an emergency travel document, but when no supporting evidence exists it takes 12 months plus.[73]In the light of this guidance Miss Gridley reasonably left it until late February or early March 2012 to chase the application. In March 2012 the case was "escalated". It was put on a monthly review list and on 6 March 2012 the Claimant's case was raised at a meeting between UKBA officials and consular officials at the Moroccan consulate in London.[74]The Claimant's case was raised by May. The UKBA agreed to email the Claimant's name and information about him to the consulate immediately and also said they would seek to raise the issue with the Ministry of Foreign Affairs in Rabat by the British Embassy. The consular official to whom they spoke approved of these steps.[75]On 13 March 2012 the Claimant's name was added to a list of the ten most important cases of detained persons, so it, like them, should be brought to the attention of ministers and raised weekly with the Moroccan authorities.[76]On 29 March 2012 the Moroccan consulate confirmed that they had raised the Claimant's case with the Ministry of Foreign Affairs in Algiers:
"On 2 May 2012 British Embassy officials met the director for International Corporation at the Ministry of the Interior in Rabat, who confirmed that the information submitted by Interpole satisfied him that another longstanding Moroccan detainee was a Moroccan national and that although the Claimant's case had not previously been raised "the same outcome was anticipated."
[77]On 4 May UKBA officials had a long discussion with the Moroccan Deputy Consul who expressed a willingness to work with UKBA to resolve the situation of people who had been detained for a long time, but that results would take between 2 months and over a year. The conclusion of the senior official of the UKBA present at the discussions was that attempts to progress requests through the consulate "especially for non-cooperative applicants will be slow and difficult to pursue in a time scale that is satisfactory to UKBA." That is the stage which has now been reached.[78]There is some statistical evidence about the success rate of UKBA in obtaining emergency travel documents from Morocco and about the time taken to do so.[79]In the period from February 2008 to January 2012, 4 years, 40 applications were made for emergency travel documents for foreign national prisoners of which 38 were granted. As at January 2012 six applications remain outstanding. The apparent discrepancy is explained by the inclusion in the figure for the end of the period of applications made before February 2008 which may still have been outstanding. A simple calculation shows that there must have been four such applications. A separate exercise showed that between 1 May 2010 and 30 April 2012 16 applications for emergency travel documents for foreign national prisoners were submitted and 17 agreed, three were outstanding at the end date. What those figures show, taken together, is that at worst out of 40 applications for emergency travel documents for foreign national prisoners submitted between February 2008 and January 2012, all but three had been granted by 30 April 2012, a success rate of over 90 per cent. It is likely but not certain that the true position is in fact a little better.[80]The same statistical exercise shows that it took a long time for emergency travel documents for foreign national prisoners to be agreed and be granted when promised.[81]The law governing the detention of those subject to deportation orders who are awaiting deportation is now settled. The principles are those summarised by Dyson LJ as he then was in R (I) v SSHD [2002] EWCA (Civ) 888 as approved by him and a majority of the Supreme Court in Lumba v SSHD [2011] UKSC12. "(i)The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii)The deportee may only be detained for a period that is reasonable in all the circumstances; (iii)If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State would not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv)The Secretary of State should act with reasonable diligence and expedition to effect removal."[82]Mr Denholm for the Claimant submits that those principles -- universally known as the Hardial Singh principles -- have been infringed in this case in respects 2, 3 and 4. He submits, therefore, that I should not be satisfied that the Claimant's continuing detention is lawful. He further submits that periods of inactivity since 25 February 2009 by the Secretary of State mean that certain past periods of detention were unlawful.[83]I begin by recognising that the period of detention in this case is exceptionally long, it is nearly 39 months. The reasons for it are however obvious and in descending order are as follows: 1. The persistent and repeated provision of false information by the Claimant and his refusal to provide true information. 2. Recently, the slowness of the Moroccan bureaucracy. 3. A slow start by UKBA.[84]As to the first and most important factor, the history which I have recited at some length speaks for itself. As a result of persistent and repeated false claims by the Claimant, UKBA were encouraged to conduct extensive inquiries with the authorities of Tunisia and Algeria, all to no end.[85]This is not simply a case in which the Claimant has told lies about his history or even claimed one or two false identities. He has provided detailed information about, for example, the identity of his employers in Algiers and their telephone numbers and addresses and has provided a false birth certificate, all the time knowing that the information that he provided was untrue. He knew perfectly well that UKBA officials would act upon this false information and try unavailingly and over a long period to persuade the authorities of Algeria to accept it. Even now the Claimant continues to refuse to provide necessary true information about himself.[86]He must know his parents names'. It is established by the fact that he was fingerprinted in Morocco in 2000 that he was there as an adult; he would then have been, on the date of birth (which is the only consistent bit of information which he has given) 22 or 23 years old. He was fingerprinted as an adult, he must know and be able to state when, where and for how long he was in Morocco. He must know whether or not he has any relatives in Morocco. He must at least have an idea, guidance from his parents, about where in Morocco he was born. He advances no reason for refusing to provide this information. He does not claim, he has never claimed, that the authorities of Morocco have put him or his family in fear or done any harm to them. All that he has done is to produce inconsistent and -- I have every reason to believe -- false allegations about what occurred to his family in Algeria.[87]The consequence of this has been that the process of deporting him has taken far longer than it should have done and will still take longer than it would have done if he had provided true information.[88]Mr Denholm submits that this factor is but one of a number in determining the lawfulness of detention. Strictly he is correct, but on the facts that I have recited it is by far the most important.[89]A detained person who has conducted himself as this Claimant has, must accept most, if not all, of the blame for the delay in removing him which results from the false information provided by him and in consequence the need to either detain him or subject him to bail conditions as an alternative to detention.[90]In fact, in this case he has been released on temporary release terms twice, on each occasion he immediately breached the conditions of his release. Accordingly, not only is he responsible primarily for the delay in securing his removal, he is also responsible for the fact that that delay has occurred during a time in which he has been detained.[91]Standing back from the facts, one thing is clear: if I were to order his release today on whatever terms I might choose to order it, it is at least highly likely or, in my judgment, inevitable that he would refuse to comply with the terms and disappear for a third time. If that were to happen, then the lengthy process of obtaining an emergency travel document from the Moroccan authorities would have to start all over again and, although the period required from today remains uncertain, what would be certain is that starting all over again it would be longer than the period of further detention which he now faces.[92]UKBA acknowledge that the Moroccan authorities are slow in processing applications for emergency travel documents, especially as here when the subject is uncooperative. But the statistical analysis which I have recited shows that in very many more cases than not the application is successful.[93]Accordingly, I am satisfied that the UKBA view expressed by Miss Gridley that deportation is a realistic prospect is justified.[94]The first and third of the Hardinal Singh principles are accordingly satisfied. The second is also satisfied. Although the period of 38 months has been long -- and will be extended further for an uncertain number of months against the background which I have recited -- it remains reasonable.[95]There remains therefore only to be considered the fourth Hardinal Singh principle: has the Secretary of State acted with reasonable diligence?[96]The only period since 25 February 2009 in respect of which there might be a criticism is the first few months of detention between 25 February 2009 and the intervention of the specialist team on 4 August 2009. Nothing much happened between those two dates.[97]I am however required to consider that relatively short period, not with an overcritical eye but in a manner which accepts that the processing of difficult cases is not always impeccable. The fact that there was that short period of delay does not mean that, viewed overall, the Secretary of State did not act with reasonable diligence. Viewed overall this is a case in which the Secretary of State by UKBA was presented with a formidable challenge which she has done her best to surmount. Her best is good enough by the standards of the law. The Claimant's detention was and remains lawful. This claim is dismissed.

MR JUSTICE MITTING: Any further applications?

[99]MISS JONES: My Lord, an application for the Secretary of State costs.

MR JUSTICE MITTING: You, I take it Mr Denholm, are in receipt of public funding?

[101]MR DENHOLM: My Lord, I am, yes.[102]MR JUSTICE MITTING: You will therefore want public funding assessment of the Claimant's costs, would you not, which you may have? Can you resist an application for costs subject to Article 11 of the Access to Justice Act?[103]MR DENHOLM: My Lord, just very briefly, our position in relation to costs would be first of all you are entitled to take into account the Secretary of State's comment to this litigation which included, amongst other things, failure to acknowledge service and (inaudible) may not have had a case at all until the point of detail (inaudible) and not making good Her evidence in this claim until Friday of last week, and the evidence served on Friday last week and certainly estimated a very different complexion on the Secretary of State's position. In those circumstances we would urge that there would be no costs awarded against our client.[104]MR JUSTICE MITTING: The failure to serve acknowledgment of service merely disentitles the Secretary of State to object to the grant of permission. It does not prevent her from defending the claim which she has done. I therefore regard that as a neutral factor.[105]As regards to late service of evidence, this claim was brought on quite properly in something of a rush and the Secretary of State is not to be criticised -- at least to the extent of depriving her of the normal order for costs -- because she has produced some information at the eleventh hour.[106]There will be an order for costs in favour of the Secretary of State but subject to section 11 of the Access to Justice Act.[107]MR DENHOLM: My Lord, I am grateful.

Cited in 1 later judgment