D and P and K v The Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | David Pittaway |
| Judgment Date | 02 April 2020 |
| Neutral Citation | [2020] EWHC 736 (Admin) |
| Docket Number | Case No: 1882/2019, 1514/2019, 1310/2019,CO/1882/2019, CO/1514/2019, CO/1310/2019 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 April 2020 |
[2020] EWHC 736 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Pittaway QC
Case No: 1882/2019, 1514/2019, 1310/2019
and
Christopher Buttler and Zoe McCallum (instructed by Duncan Lewis) for the Claimants
Stephen Kosmin (instructed by the Government Legal Department) for the Defendant
Hearing date: 3 March 2020
Approved Judgment
David Pittaway QC:
Introduction
All three claimants sought the withdrawal of the President of the First-tier Tribunals (Immigration and Asylum)'s protocol or policy (“the protocol”), dated 26 February 2019, that individuals represented by Duncan Lewis solicitors should not have their appeals heard at the Birmingham hearing centre of the First-tier Tribunal (Immigration And Asylum Chamber), following the appointment of two directors of Duncan Lewis as fee-paid judges in Birmingham. Notwithstanding correspondence from Duncan Lewis submitting that the protocol was unlawful and should be withdrawn, the President maintained the application of it. All three claimants made applications to the tribunal to vacate hearing dates at Hatton Cross, West London, and began judicial review proceedings against the defendant. After various applications to the tribunal and to the court relating to the judicial review claims, the defendant wrote on 17 May 2019 stating that the protocol was withdrawn. The directions contained in the protocol were replaced with new listing directions consistent with the existing case law on bias.
The defendant made a CPR Part 36 offer to settle the first claimant's claim, which was accepted on 2 January 2020, entitling him to his costs, pursuant to CPR rule 36 (13) (1). Before that offer was made the second and third claimants applied to discontinue their claims on the basis that the withdrawal of the protocol gave them, in substance, the relief sought. They seek permission to discontinue the claims pursuant to CPR rule 38.2(2)(a)(i) and on terms that the defendant shall pay the costs of the claims. The defendant submits that there should be no order as to costs.
Issues
Mr Buttler, on behalf of the claimants, contends that the protocol imposed an unlawful blanket policy, which did not include any criteria for hearings to remain in Birmingham, even for those involving clients who would be disadvantaged by having to travel from the West Midlands to Hatton Cross. The second and third claimants, who were respectively victims of sex trafficking and torture, were, it was alleged, disadvantaged by having to undertake the journey from Birmingham to Hatton Cross. Mr Kosmin, on behalf of the defendant, contends that it was not a blanket policy and contained, what he describes as a caveat, which enabled claimants to request a transfer to an alternative hearing centre. He draws attention to the caveat being applied to both the second and third claimant's cases, where applications to change hearing centres were ultimately successful. He also disputes whether it is necessary for the second and third claimants to obtain the court's permission pursuant to CPR rule 38.2(2)(a)(i) for discontinuance.
I am satisfied that although the second and third claimants' claims forms do refer to the applications to vacate hearing dates for the appeals at Hatton Cross, the underlying challenge, and reason for the challenge, was the protocol issued by the President on 26 February 2019. I am also satisfied that the claimants had standing to bring these proceedings and continue them after their appeal hearings had been moved.
Relevant Factual Background
I have not set out a full chronology of all the applications before the tribunal or court for either the second or third claimants. I am no longer concerned with the first claimant's claim except in so far as it provides background to the events which occurred. There is a full chronology set out in the defendant's skeleton argument, which I have considered. I have set out a partial chronology of the events relating to the second and third claimants' claims for judicial review of the defendant's protocol and applications to the tribunal.
As I have said, the background to the claim is that two directors of Duncan Lewis applied to sit as Judges of the First-tier Tribunal (Immigration and Asylum Chamber) and, having been successful in their applications, were allocated to sit at the Birmingham Tribunal Centre. On 26 February 2019 the President of the First Tier Tribunal (Immigration and Asylum Chamber) (“the President”) issued a policy applicable to cases in which an appellant was represented by Duncan Lewis. He directed that all such cases were to be transferred out of the Birmingham hearing centre to Hatton Cross, West London.
The letter stated:
“I write to inform you that following the recent fee paid tribunal judge recruitment exercise across The First Tier Tribunal Immigration and Asylum Chamber see two existing employees of Duncan Lewis solicitors were successful in their (FtTIAC) applications and have been assigned to the Birmingham hearing centre. To avoid any perception of bias within the FtTIAC I have decided that all current appeals lodged at Birmingham by Duncan Lewis solicitors will be transferred to Hatton Cross as soon as logistically possible. Therefore, no further appeals will be listed or heard at Birmingham whilst any of your employees sit at that hearing centre in a fee paid capacity. I understand that this arrangement may not be convenient however we will endeavour to accommodate any request to transfer your current appeals to an alternative hearing centre wherever possible. If you have any appeals lodged at Birmingham that you would like to be transferred to a particular hearing centre, you will need to contact the centre directly to request this.”
On 20 March 2019, three weeks after the protocol was issued, Duncan Lewis wrote to the President explaining that the protocol was not practicable and requested that affected cases be listed in front of other judges in the Birmingham hearing centre. No response was received to that letter.
On 1 April 2019 the third claimant issued proceedings challenging the protocol and seeking an interim order to vacate his asylum hearing set to proceed on 4 April 2019 to Hatton Cross. Before the issue of the proceedings, Duncan Lewis sought the disapplication of the protocol by making representations to the Resident Judge by letter on 14 March 2019, by making a transfer request on 26 March 2019, and by sending a pre action protocol letter on 28 March 2019. An application for interim relief in the High Court was refused the following day on the basis that the transfer application was still under consideration. In response to that order the tribunal converted the hearing on 4 April 2019 into a case management hearing to determine the transfer request. Following that hearing the Resident Judge continued to apply the policy and relisted the hearing at Hatton Cross. On 19 April 2019 the third claimant's representatives filed with the tribunal an expert psychiatric report, which concluded that the third claimant's psychiatric disorder was a disability under the Equality Act 2010, and that the journey to Hatton Cross from his home in Wolverhampton would be very likely to have a negative impact on his capacity to give evidence. On 23 April 2019 the Resident Judge directed that his appeal proceeds at the Coventry hearing centre.
The second claimant issued proceedings on 12 April 2019, challenging the policy, and seeking to vacate her asylum hearing set to proceed on 15 April 2019 at Hatton Cross. Before the issue of proceedings, Duncan Lewis challenged the application of the policy by a transfer request dated 4 April 2019, refused on 8 April 2019, a renewed transfer request dated 8 April 2019, and a pre action letter dated 11 April 2019. The resident judge at Hatton Cross gave directions on 12 April 2019 requiring the second claimant's appeal to proceed at Hatton Cross the next working day. On 12 April 2019 Supperstone J granted interim relief by vacating the hearing at Hatton Cross and ordering that her asylum claim should not be heard before the oral hearing of the interim relief application.
On 7 and 8 May 2019 the defendant filed an Acknowledgment of Service in relation to the second and third claims respectively, stating that he took a neutral position on the claims by reason of being a court or tribunal. The claimant submits that although the defendant indicated in the Acknowledgments of Service that he intended to take a neutral position the defendant actively opposed the claims. In respect of each case the defendant filed letters alongside the Acknowledgments of Service dated 30 April an 8 May 2019 contesting both claims, on the basis that the second and third claimants lacked standing, that the relevant case management decision was not amenable to judicial review, and that the claimants had overstated the legal position on the appearance of bias.
On 17 May 2019 the defendant sent all three claimants a joint three-page letter, in which it explained that the President had decided to amend the policy in context of the claimants' challenge as follows:
“The President of the First Tier Tribunal (IAC) has decided to alter current administrative arrangements. The new arrangements will be in these terms:
“Hearing centres and the national business centre should have access to a list of fee paid judges that will alert them to any possible conflicts of...
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