Hashem, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 3503 (Admin)

Case No CO/895/2012[2014] EWHC 3503 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 8 October 2014
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE NICOL
Between
THE QUEEN ON THE APPLICATION OF HASHEMClaimantv
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)
for The Claimant did not attend and was not representedMs E Dehon appeared for Defendant
J U D G M E N T
[1]MR JUSTICE NICOL: This is an application for judicial review for the immigration decision. The claim was lodged on 27 January 2012. Permission was granted by His Honour Judge McKenna on 17 October 2012. The case was stayed behind that of Hamzeh 2013 EWHC 4113. In a judgment given by Simler J on 20 December 2013, the Secretary of State's case was successful.[2]The Treasury Solicitor wrote to the claimant, who was then represented by the solicitors Barnes, Harrild & Dyer on 14 March 2014, asking whether the claimant intended to proceed. There appears to have been no response to that letter and the Treasury Solicitor chased on 18 September 2014.[3]On 25 September 2014, Barnes, Harrild & Dyer replied:
"I write further to your letter of 18 September 2014. Please note that we no longer act for the above claimant in this matter. We have not had instructions from the claimant for a considerable amount of time, and are unable to contact him on the contact details previously provided to us. In the event that the claimant contacts us, we shall forward on your details to him."
[4]On 3 October 2014, when the case was in the list for today, that is Wednesday 8 October, for a hearing of the substantive application for judicial review, I made a direction that the case would instead be listed for directions and/or dismissal.[5]I directed that if the claimant's solicitor wished to apply for an order under CPR rule 42.3, they must make such an application forthwith. Notice of the application must be given to the claimant in accordance with rule 42.3(2)(a) and if that is not possible, the claimant's solicitors must in a witness statement give evidence as to why not, in addition to evidence in support of the application.[6]I said that the hearing on 8 October would not deal with the substantive merits of the judicial review. I was anxious that the defendant should not be put to the expense of briefing counsel on such a substantive hearing, if, as seemed likely, it was not to take place.[7]The claimant's solicitors thereafter served a witness statement dated 7 October, made by Miss R Peta Barua. In that witness statement, she says that the Legal Aid Agency discharged the claimant's legal aid certificate on 8 May 2014, and she produced a certificate to that effect, saying that the assisted person had not returned the form sent for him to enable his or her financial resources to be reconsidered.[8]Furthermore, she says this:
"The claimant attended my office on 23 September 2014. At that time, he provided me with a new contact number and postal address. As a result of the claimant's failure to have informed me of his change of contact details, he had not received any of the correspondence that had been sent to him about his case. "
As explained to him, that due to his failure to have sought to inform us of his change in contact details, and also his delay in seeking to contact us directly before then, we were not in a position to proceed to the substantive hearing of 8 October 2014 on his behalf. "I advised him of the process by which he may inform the court and the Treasury Solicitor that he is now acting for himself."[9]She goes on:
"Prior to my letter of 25 September 2014, to the Treasury Solicitor copied to the court, I contacted the claimant on the telephone number provided at my meeting of 23 September 2014 in order to seek his consent to his contact details being provided to the Treasury Solicitor. "
The telephone number that was provided, however, is not correct, and therefore I have not been able to speak with the claimant in this regard. In the light of the cancellation of the claimant's public funding certificate, we are without funds or authority from the Legal Aid Agency to make an application to come off the record under CPR 42.3. "It has always been my understanding that in circumstances where confirmation of public funding having been withdrawn could be produced, this is sufficient for the court to take us off the record as acting. "This understanding was confirmed in the letter received from the court of 26 September 2014. The letter of 26 September 2014 is produced. It is a response to the solicitor's letter of 25 September."[10]It simply sets out the alternative means by which solicitors can proceed if they no longer wish to act for a claimant.[11]At the hearing today there has been no attendance by either the claimant solicitors or by the claimant in person. Rule 42.3(6) provides:
"Where the certificate of a person to whom legal aid is provided is revoked or withdrawn: "(a) the solicitor who acted for that person will cease to be a solicitor acting in the case as soon as the solicitor's retainer is determined by the regulation 24 or 41 of the Civil Legal Aid (Procedure) Regulations 2012. "(b) if that person wishes to continue where he appoints a solicitor to act on his behalf paragraph 2 will apply as if he had previously conducted the claim in person, and (2), where he wants to act in person he must give an address for service."
[12]The claimant has not given an address for service in accordance with rule 42.2(6)(b)(ii). That in itself is a reason why, in my judgment, with the qualification which I will come to, that the claim should be struck out under CPR rule 3.4(2)(c).[13]The qualification is that it is not entirely clear to me whether the claimant has been given notice of this hearing today. It would be incumbent on the solicitors (who are the only ones with whom the court has dealings) and in accordance with the directions which I made on 3 October for the solicitors to give their former client notice of today's hearing.[14]Since there is some ambiguity as to whether that occurred, I will add this qualification: that the case will be struck out, unless within 14 days of today the claimant gives notice of his wish to continue this claim and an address for service, as rule 42.2.6(b(ii)requires.[15]I have explained in the course of this judgment that the prospects of success would appear not to be very great, given the procedural history that I have described. However, if he does wish to proceed with the hearing and gives the required undertaking, then it will be open to him to attend at a future hearing to be arranged.[16]I want to add this. In the light of Miss Barua's witness statement, I was surprised that her firm felt it appropriate to write the letter that they did to the Treasury Solicitor and the court on 25 September 2014. That letter makes no reference to the discharge of the claimant's legal aid certificate. That letter makes no reference to the fact that she had seen her client, or the firm had seen their client, only two days previously.[17]One alternative would be for the court to require a representative of Barnes, Harrild & Dyer to come to court to explain how that could be. But in the first place, it seems to me that a more appropriate direction is for there to be a further witness statement from Barnes, Harrild & Dyer within 7 days of today, explaining those two matters. That witness statement will be brought to my attention and I will consider what, if any, further steps need to be done. All right, thank you very much.[18]Anything else? No. Could we have a transcript of that judgment made and sent to the solicitors as soon as possible, thank you. Could you also make sure that a copy of the order that I have made is given to the solicitors as soon as possible, they have to respond within 7 days, thank you.