AT v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Walden-Smith |
| Judgment Date | 04 October 2017 |
| Neutral Citation | [2017] EWHC 3210 (Admin) |
| Docket Number | CO/712/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 October 2017 |
[2017] EWHC 3210 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
HER HONOUR JUDGE Walden-Smith
(Sitting as a Judge of the High Court)
CO/712/2017
APPEARANCES
Miss Kilroy appeared on behalf of the Claimant.
Miss Barnes appeared on behalf of the Defendant.
This is a matter that has been listed for the substantive hearing of the judicial review application on behalf of AT, FF and BT against the Secretary of State for the Home Department with respect to the lawfulness of her decisions, in particular with respect to the detention and removal of the first claimant, AT.
Anonymity of the claimants was ordered on an interim basis by McGowan J on 9 th February 2017. That anonymity continues by virtue of a further order of Helen Mountfield QC sitting as a deputy judge of the High Court. That interim order now continues until any further order is made.
There is no need at this time for me to go into any details with respect to the history of the substantive application. I am mindful of the fact that this case has been given an initial listing of a day and a half and that one half of that time estimate has now already effectively been taken up with these arguments.
The history of this interim application can be summarised as follows. The claimant initially sent, through those representing him, the Public Law Project, a very detailed letter of claim to the Secretary of State on 29 th January 2017. There was no response to that detailed letter before claim.
On 2 nd February 2017 there was a chasing letter sent on behalf of the claimant requesting a response from the Secretary of State. No response was provided.
Legal aid was applied for on behalf of the claimants. On 9 th February 2017 an unsealed claim form was sent to the Secretary of State together with an application for a stay pending resolution of the issue as to whether public funding would be made available. That application for a stay was refused by McGowan J on 9 th February 2017, the date on which she made the anonymity order. That was the same date on which the claim was issued. In her reasons for the refusal of the stay, McGowen J. commented that it was not right to delay the resolution of the issues in this case for some indefinite period.
The claimant then requested an extension of time from the defendant for the serving of the claimant's claim form, which necessitated an extension of time for the filing of the defendant's acknowledgment of service. There was no response to that request made on 13 th February 2017.
On 16 th February 2017 the sealed claim form was served upon the Secretary of State and a further request made for a stay until 27 th March 2017. There was no response to that letter. Legal aid was granted on 1 st March 2017.
On 8 th March 2017, an extension of time was suggested by the claimant both for the filing of detailed grounds of claim, the amended bundle and the evidence. The Secretary of State agreed to that extension of time on the basis that the defendant would file and serve her acknowledgment of service within 21 days of the detailed grounds of claim being filed and served by the claimant. Until that agreement made in March 2017, the claimants' advisors had been entirely proactive and the Secretary of State was taking no steps.
On 14 th March 2017 there was a consent order approved by the court so that the defendant had until, in principle, 7 th April 2017 to file the acknowledgment of service. The Secretary of State did not file an acknowledgment of service and did not apply for an extension of time for acknowledgment of service.
The claimant contacted the defendant again, requesting that the acknowledgment of service be served by no later than 21 st April (that would be a further 14 days beyond the original consent order) or an application would be made for a judge to make a determination with respect to permission to judicially review the Secretary of State's decisions without receipt of the defendant's acknowledgment of service. There was no response to that communication. In due course, on 21 st April 2017, the claimant, through his representatives, asked for such a decision to be made.
On 7 th June 2017 Helen Mountfield QC, sitting as a Deputy, gave permission to judicially review the Secretary of State, noting within her order that she was forming her views on arguability on the basis of the claim form alone, that the consent order had been made on 14 th March 2017 giving the defendant an extension of time for the acknowledgment of service until 21 days after the claimant filed grounds of claim on 17 th March 2017. She noted that no acknowledgment of service had been filed to date.
Directions were given in the standard form, which included that the defendant had 35 days from the service of the order to file and serve those detailed grounds.
On 13 th July 2017, the Secretary of State applied for an extension of time for a further 35 days to file detailed grounds of defence. Those grounds ought to have been filed and served by 14 th July 2017. The request was that that extension continue until 18 th August 2017. That extension was granted and the defendant was given until 18 th August 2017 to file detailed grounds. Had that deadline of 18 th August 2017 been complied with, the claimants would have had in the region of seven weeks to consider what was being said by the respondent.
Master Gidden in his order observed that:
“The substantive hearing of the claim is still some nine weeks away. It is difficult to see that in the circumstances the prejudice to the claimant is as great as the claimant suggests it may be, although the full force of what the claimant says may not be apparent until the claimant knows the defendant's position.”
The extension was not complied with and there was no ground of defence or evidence and no application for a further extension of time from the Secretary of State.
On 23 rd August 2017, the claimant's representatives wrote to ask the Secretary of State whether she intended to participate in the hearing listed to take place today and tomorrow, 4 th and 5 th October 2017, and if so when she intended to serve and file her detailed grounds and any evidence.
The claimant wrote again to the defendant on 30 th August 2017, again alerting the defendant to the timetable and the need then for a skeleton argument to be prepared and for the bundle to be compiled, but there was no response either to the letter of 23 rd August or 30 th August.
In due course, the claimant filed and served a skeleton argument and trial bundle, asking for the time estimate to be reduced to a day in light of the fact that the Secretary of State was not engaging in the proceedings at all. That, until late yesterday afternoon, was the position so far as the claimant understood the situation and so far as this court understood the position. Save for agreeing an extension of time in March 2017 and obtaining the extension of time until 18 th August 2017, the Secretary of State had failed to take any interest in this case.
At approximately 3.30 p.m., the day before the listed hearing, the detailed grounds of defence were filed at the court. Ms Barnes, Counsel for the Secretary of State, has shown me today an application that was made yesterday, but not issued until this morning. This is an application for relief from sanction so as to enable the defendant to be able to take part in this hearing.
The Civil Procedure Rules are clear. Rule 54.9 provides that where a person served with a claim form has failed to file an acknowledgment of service in accordance with rule 54.8, he may not take part in the hearing to decide whether permission should be given unless the court allows him to do so; but, provided he complies with rule 54.14 or any other direction of the court regarding the filing and service of detailed grounds for contesting the claim he may take part in the hearing of the judicial review.
Rule 54.14 provides that a defendant and any other person served with a claim form who wishes to contest the claim, or support it on additional grounds, must file and serve detailed grounds for contesting the claim or supporting it on additional grounds and any written evidence within 35 days after service of the order giving permission. In this case, as I have already set out by the chronology, there was an extension of time for the defendant to comply with rule 54.14 to 18 th August 2017.
The defendant attends today by counsel to seek an order of the court to allow the Secretary of State, despite the failure to comply with the rules and the failure to comply with the order of the court, to take part in these judicial review proceedings. The application was only made on the morning of the hearing and consequently was not an application formally listed before me.
Counsel on behalf of the claimant has...
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