DAS, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 830 (Admin)

Case No CO/12738/2011[2013] EWHC 830 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday 13 March 2013
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SALES
Between
THE QUEEN ON THE APPLICATION OF DASClaimantv
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 7831 8838(Official Shorthand Writers to the Court)(Application to adduce fresh evidence)
Miss Stephanie Harrison and Miss Michelle Brewer appeared for ClaimantMr Paul Greatorex appeared for Defendant
J U D G M E N T
[1]MR JUSTICE SALES: An application is made to re-amend the amended detailed statement of grounds put forward by the claimant in this case. I was concerned after granting permission in relation to part of the case brought by the claimant at the hearing on 25 April 2011 that the claimant's case should be properly and fully pleaded preparatory for the final hearing in this matter, and [I] directed that the amended detailed statement of grounds should be prepared for the claimant. Such document was prepared, filed and served.[2]What is proposed in the current application is that a very late amendment should be made to those amended detailed statement of grounds to introduce a new point. The point was foreshadowed to some extent by paragraph 45 in the claimant's skeleton argument dated 5 March 2013 where it was said, under the heading "Legal Framework", that it is distinct from the section of the skeleton argument dealing with submissions:
"It remains unclear from disclosure under which power the defendant detained the claimant. The IS 91R refers to the Immigration Act 1971 ..... " (although the Nationality Immigration and Asylum Act 2002 and the bundle reference is given) - "
The latter does not contain any power to detain. The defendant must establish that a lawful decision to detain was taken."[3]In my view that was not clear and fair notice to the defendant of the new point which is sought to be introduced by the amendment.[4]The proposed amendment is to read as follows:
"The defendant is required but is unable to establish that the detention of the claimant pursuant to .... in Schedule 2 paragraph 16 of the Immigration Act 1971 lawful authorisation for the detention is a condition precedent for the lawful exercise of the power to detain. The IS 91 authorisation for detention was not completed in this case as required by law under the policy as stated in chapter 55.6.2 of the defendant's Enforcement Instruction Guidance."
[5]That new proposed ground depends upon the factual assertion as to whether the relevant IS 91 was completed. There is already evidence in the trial bundle in the form of notes prepared by the UKBA at the time of the claimant being taken into detention stating that the relevant IS 91 Form was sent to G4S. However I am told that subsequent to the claimant's skeleton argument being put in the defendant was asked to produce the IS 91 document and, on about 7 March, produced a document which has not been included in the bundle but has been handed to me today in the form of an IS 91 relating to the claimant but in a form which has not been completed with relevant information, nor signed. That document is, as I understand it, being put forward as the only relevant IS 91 document and the foundation for the proposed amendment.[6]The proposed amendment was only announced in court this morning. The defendant had not been given notice that such an application was to be made. Moreover it is clear that if the amendment is admitted fairness would require that the defendant should have sufficient notice of it to be able to conduct investigation as to the full facts in respect of the issue of an IS 91 Form. There are indications, as I accept, in the documents in the bundles that one was completed. It is by no means clear that the document I was handed today is the only version of the IS 91 which might be found upon further investigation. Also there would be the possibility of evidence being given by witnesses about what had occurred.[7]I asked Miss Harrison, for the claimant, whether she was leaving her application to amend the amended details in the statement of grounds with an application for an adjournment; she made it clear that she was not, and would also oppose any adjournment for the benefit of the defendant. In the circumstances - given the extreme lateness with which the application to amend is made and the unfairness that would be involved in allowing the amendment to be made without an adjournment coupled with the opposition of the claimant to an adjournment being granted - in my judgment the fair result of this application is that it should be refused.[8]Accordingly, I refuse permission for the proposed amendment. (Legal submissions continued)