Harrisingh& Ors, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1125 (Admin)

[2013] EWHC 1125 (Admin)Case No CO/1984/2013/CO/9691/2012/CO/11272/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Friday, 8th March 2013
Strand
London WC2A 2LL
B e f o r e:
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR JOHN THOMAS)
MR JUSTICE CRANSTON
Between
THE QUEEN ON THE APPLICATION OF RYLAN EMMANUEL HARRISINGH VERSUS SECRETARY OF STATE FOR THE HOME DEPARTMENTClaimantTHE QUEEN ON THE APPLICATION OF ASHOKA NAWARATHNA DADAYAKKARA DEWAGE PALINDA & ORS VERSUS SECRETARY OF STATE FOR THE HOME DEPARTMENTClaimantTHE QUEEN ON THE APPLICATION OF "B" VERSUS SECRETARY OF STATE FOR THE HOME DEPARTMENTClaimantFOR MENTIONClaimantComputer-Aided Transcript of the Stenograph Notes ofClaimantWordWave International LimitedClaimantA Merrill Communications CompanyClaimant165 Fleet Street London EC4A 2AGClaimantTel No: 020 7404 1400 Fax No: 020 7831 8838Claimant(Official Shorthand Writers to the Court)ClaimantSecretary of State for the Home DepartmentDefendantTHE QUEEN ON THE APPLICATION OF RYLAN EMMANUEL HARRISINGH VERSUS SECRETARY OF STATE for HOME DEPARTMENTTHE QUEEN ON THE APPLICATION OF ASHOKA NAWARATHNA DADAYAKKARA DEWAGE PALINDA & ORS VERSUS SECRETARY OF STATE for HOME DEPARTMENTTHE QUEEN ON THE APPLICATION OF "B" VERSUS SECRETARY OF STATE for HOME DEPARTMENTFOR MENTION
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Ashiq (instructed by Lex Law) appeared for First PartyMr Arsenio (instructed by AK Solicitors) appeared for Second Party
J U D G M E N T
[1]PRESIDENT OF THE QUEEN'S BENCH DIVISION: There are before us this morning three matters. We will explain what we have done in each. In the first called Harrisingh, we have adjourned the matter, pending the attendance of a lawyer, who is said to have given advice. He is not present and it would be unfair, both to him and to the solicitors concerned, to deal with it in his absence.[2]The second matter before us is a follow up to the case of B [2012] EWCA 370 (Admin). It is apparent from what we have been told today that the solicitors concerned did not appreciate how they should deal with cases where the matter was in effect not going to proceed at all. If that is the position there are three courses of action open. The first, which requires the consent of the client, is a notice of discontinuance. That is a straightforward procedure to be found in Part 38. The second is to lodge a consent order. This also requires the consent of both the client plus, in this case, the Treasury Solicitor. The third, which was probably apposite in the present case, is immediately to come off-the-record. That is the course to be followed where attempts have been made to obtain instructions, but no instructions have been given. What cannot happen in cases such as this, or any case where it is decided not to continue, is for the solicitors to do nothing. We have explained that to the solicitors present but we wish to record the matter formally.[3]The third case, which is the only matter that we have been able to deal with fully today, involves a person to whom we shall refer as "N".[4]The background was broadly as follows. The family came from Sri Lanka to the United Kingdom in 2010. The mother was on a student visa. The father went back to Sri Lanka but when he returned he made an asylum claim on 7th November 2011 for himself, his wife and their child. He put it forward on the basis that he worked for a person who was in a rival political party to that of President Rajapaska. He claimed to have been beaten up. He said he was falsely accused of smuggling arms for the LTTE.[5]That asylum claim was rejected by the First-tier Tribunal in February 2012. The First-tier Tribunal refused permission to appeal on 9th March 2012 and the Upper Tribunal refused permission on 30th May. No doubt unhappy at that result, he went to the solicitors, Nagg & Co. They were instructed, we understand, on 20th July 2012. They made further representations which, as far as we can discern, largely repeated what was advanced before the Tribunal although they added some documentation about the police looking for the applicant. The Secretary of State for the Home Department rejected those further representations on the 5th October.[6]A judicial review of that decision was launched on the 12th September and an acknowledgement of service was served by the Secretary of State for the Home Department on 30th October 2012. That was considered by a Deputy Judge of this court, Mr Corner QC, who rejected it on the 14th December as totally without merit. A renewed application was lodged on the 9th January 2013. It simply re-argued the points that had been before Mr Corner QC. The renewal did not contain any certification as to how the renewal could be made when Mr Corner had dismissed it as totally without merit.[7]On 31st January 2013 the Secretary of State for the Home Department set removal directions for the claimant to be removed on the 14th February. It appears that the family did not make any direct contact, so we are told, with their current solicitors, Nagg Freshlaw, until the 12th. It was on that day that an application was made to the court to stay removal; it included a document which was signed by a solicitor employed by the firm. We have been told that it was prepared by a case worker who is undertaking the examinations to become a solicitor in this country, he having previously practised as a lawyer in Sri Lanka. For the purposes of this jurisdiction he is a student, albeit one with some experience, and not someone with a training contract.[8]The form was signed, as we have said, by a solicitor. The solicitor has told us today that he acted in a hurry. He did not intend in any way to fail deliberately to follow the procedures of the court.[9]We cannot accept his excuse. It wholly fails to take into account the fact that what happens on an application to prevent a removal is to invoke the process of the court in a matter which could stay the executive government from carrying out a decision which it has, on all the previous occasions, had ample justification for taking. It was completely unacceptable that the matter was not carefully examined by the solicitor, where the application was prepared by a student. There is and can be no excuse for the serious misconduct of the solicitor concerned.[10]As it was an application to stay removal the matter came on before Kenneth Parker J. He set out the history and then said:
"Notwithstanding the order of the court made on 14th December, on 12th February solicitors issued an application notice seeking a stay. The application does not address the order of 14th December, no doubt because there is no properly arguable basis for channelling the decision on 3rd October 2012. Nor does the application explain why it was not issued promptly after removal directions were made on 31st January. It was issued to be dealt immediate just two days before the day fixed for removal. In these circumstances the application for a stay is wholly without merit and there is also a serious misuse of the process of this court for which Nagg Freshlaw Solicitors must take responsibility."
We entirely agree with the views expressed by Kenneth Parker J. This was a serious abuse of the process of the court.[11]The court has had in mind referring to the Solicitors Regulation Authority the firm, for its failure to put in place proper training arrangements, the solicitor concerned, for his abdication of his professional responsibilities, and the student concerned who prepared the application. However, in the light of what we have been told by the senior partner of the firm, we think we can defer taking that step for the present if within a month from today's date the senior partner returns to inform us of the steps that have been taken to ensure there is strict compliance within the firm of the procedures of this court and that steps have been taken to ensure that all those who deal with this sort of work are properly appreciative of the procedures of this court. If there is not a proper explanation of what has been done, together with details of the necessary training, we shall not hesitate to refer the matter to the Solicitors Regulation Authority for it to take appropriate action. We appreciate that the firm has apologised profusely for what has happened and it is only because of the abject nature of that apology that we have taken what some might consider a merciful yet pragmatic view in not referring the matter. We will endeavour to fix a date as soon after 9th April as is practicable for the firm to return and explain what it has done through the senior partner, her explanation being evidenced by proper documentation, and showing that proper training, including training by external people, has been given to those concerned.

MR JUSTICE CRANSTON: I agree.

[13]PRESIDENT OF THE QUEEN'S BENCH DIVISION: Two matters arise. First of all what has happened to the position of the renewed application, what is the position?[14]DR NAGULESAN: My Lord we have advised the client it should be withdrawn in the light of the comments and findings of --[15]PRESIDENT OF THE QUEEN'S BENCH DIVISION: We would also expect you to take such steps as we have just set out in relation to that.[16]The second question I want to ask you; is this being done under legal aid or not?[17]DR NAGULESAN: No my Lord, it was done on a privately funded basis.

PRESIDENT OF THE QUEEN'S BENCH DIVISION: What basis?

[19]DR NAGULESAN: Privately funded because we had legal aid. It was done pro bono in this instance.[20]PRESIDENT OF THE QUEEN'S BENCH DIVISION: This was a pro bono case in this instance. We would like details of the pro bono in your report. Those are the steps we shall take.