DVP v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeDame Victoria Sharp P.
Judgment Date17 March 2021
Neutral Citation[2021] EWHC 606 (Admin)
Docket NumberCase No: CO/4397/2020; CO/4398/2020; CO/4399/2020; CO/4400/2020; CO/4401/2020; CO/4402/2020
CourtQueen's Bench Division (Administrative Court)
Date17 March 2021

[2021] EWHC 606 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

PRESIDENT OF THE QUEEN'S BENCH DIVISION

and

Mrs Justice Tipples DBE

Case No: CO/4397/2020; CO/4398/2020; CO/4399/2020; CO/4400/2020; CO/4401/2020; CO/4402/2020

Between:
DVP
Claimant
and
The Secretary of State for the Home Department
Defendant
And Between:
CBW
Claimant
and
The Secretary of State for the Home Department
Defendant
And Between:
MDE
Claimant
and
The Secretary of State for the Home Department
Defendant
And Between:
RAM
Claimant
and
The Secretary of State for the Home Department
Defendant
And Between:
ASH
Claimant
and
The Secretary of State for the Home Department
Defendant
And Between:
BMS
Claimant
and
The Secretary of State for the Home Department
Defendant

Ms Stephanie Harrison QC (instructed by Duncan Lewis LLP)

The Secretary of State for the Home Department did not appear and was not represented.

Hearing date: 17 February 2021

APPROVED JUDGMENT

Dame Victoria Sharp P.

Introduction

1

This is the judgment of the court.

2

The Hamid jurisdiction is a facet of the court's jurisdiction to regulate its own procedures and to enforce the overriding duties owed to it by legal professionals: see R (Hamid) Secretary of State for Home Department [2012] EWHC 3070 (Admin). Although the Hamid jurisdiction originated in the field of immigration, it is not confined to immigration or even to public law claims: see, for example, Gubarev v Orbis Business Intelligence Ltd [2020] EWHC 2167 (QB) and R (Wingfield) v Canterbury City Council [2020] EWCA Civ 1588 at para 11.

3

This present case has been referred to the Divisional Court under the Hamid jurisdiction. This reference arises from an order made by Swift J on 30 November 2020, following an urgent application that had come before him on that day in the Administrative Court, which related to six different claims for judicial review, all of which had been issued in materially identical terms. This hearing is not concerned with the underlying merits of the claims. It concerns only the issues which gave rise to the need for the court to invoke the Hamid jurisdiction.

4

In his order, Swift J identified significant concerns about the conduct of the claims by Duncan Lewis LLP. Central to those concerns was the use (or abuse to be more precise) of the ‘urgents’ procedures in the Administrative Court. There were a number of particular features of this on which it has been necessary to focus, namely whether the application that was made was urgent; the failure to provide the required information to the court; the fact that the application for interim relief purported to be made on behalf of people other than the claimants, when there were no instructions to do so and breaches of the duty of candour.

5

Following the order made by Swift J, Duncan Lewis were sent what is called a “show cause” letter by the court. Mr Toufique Hossain, the lead solicitor at Duncan Lewis with responsibility for the six claims, and Mr David Head, the Director of Compliance at Duncan Lewis were then directed to appear before the Divisional Court to address the concerns identified in Swift J's order and to give reasons why they should not be reported to the Solicitors Regulatory Authority. At this Hamid hearing, Duncan Lewis have been represented by counsel who were instructed by Duncan Lewis in relation to the judicial review claims and in the application which came before Swift J on 30 November 2020. We heard from Ms Stephanie Harrison QC who spoke on their behalf.

Urgent applications in the Administrative Court

6

The Administrative Court often deals with urgent applications. This is a very important part of its work in the public interest, and a High Court judge is always available to hear such applications. Thus, a High Court judge is always available in the Administrative Court during court hours in the week, to deal only with urgent applications. Cases which are so urgent that they need to be dealt with out of normal court hours, including weekends, public holidays and vacation, are dealt with by the High Court judge on ‘out of hours’ duty.

7

It is of the utmost importance that this limited resource is not abused, and over the years, the courts have developed rules to ensure this does not occur. If cases that are not truly urgent displace those that are, this will have serious consequences for litigants who have a good reason for applying for urgent relief. Two things flow from this. First, those seeking to make use of the ‘urgents’ procedures are under a duty to the court to satisfy themselves that the application they are considering really is urgent and to adhere, to the letter, to the rules of court which protect the procedure from abuse. This has always been the case. The fact that case papers can now be filed electronically, has not altered the position. Secondly, any abuse of the ‘urgents’ procedures will not be tolerated by the court and will be met with appropriate sanction.

8

The Administrative Court Judicial Review Guide 2020 (the Guide) is essential reading for all those who practice in the Administrative Court. It sets out the practice for urgent cases and applications for interim relief in sections 14 and 15, at pages 70 to 78. The Guide reminds all litigants and their advisers that for urgent cases, they must: (a) clearly set out the reasons for urgency on the face of the application notice; (b) comply with their duty of candour which requires them to disclose all relevant material to the court (para 14.1 of the Guide); and (c) comply with the Civil Procedure Rules, Practice Directions and other obligations owed to the court (paras 15.1.2 and 15.1.3 of the Guide).

9

The duty of candour in this context, means that the claimant must disclose any relevant information or material fact which either supports or undermines his case. Material facts are those facts which it is material for a judge to know when dealing with the urgent application. The duty requires the claimant to make the court aware of the issues that are likely to arise and the possible difficulties in the application or underlying claim. The information the claimant puts before the Administrative Court in support of an urgent application must be presented in a fair and even-handed manner, and in a way which is not designed simply to promote his own case. The court must be able to rely on the claimant's compliance with the duty of candour, as urgent applications in the Administrative Court are usually made on very limited notice to a defendant, and an exceptionally urgent application may be made without any notice to the defendant at all.

10

The court will set aside an order obtained without full notice to the other party, if there has been a breach of the applicant's duty of candour to the court, even if the order might otherwise have been justified. This principle applies to the Administrative Court, as it does to every other jurisdiction. Amongst other reasons, this is done to deter the misuse of the court process: see for example R (SB (Afghanistan)) v Secretary of State for the Home Department [2018] 1 WLR 4457, CA at para 79 (4471F-G), per Lord Burnett of Maldon CJ.

11

Section 16 of the Guide explains the steps the court can take if its procedures for urgent consideration are abused. This includes making adverse or wasted costs orders. The Hamid jurisdiction is explained, and it is made clear that professional representatives may be referred to their relevant professional regulator for consideration of disciplinary action if they fail to comply with their professional obligations.

12

It is necessary to refer to three other important parts of the Guide in relation to urgent cases.

13

First, in relation to applications for urgent consideration of judicial review claims the Guide provides that:

a. In exceptionally urgent circumstances, a person may make an application, typically for interim relief, before starting judicial review proceedings. The court may only grant a pre-action order where the matter is urgent; or it is otherwise necessary to do so in the interests of justice (para 15.2.1 of the Guide).

b. Where the circumstances of the case require urgent consideration of the application for permission to apply for judicial review, the claimant may apply for urgent consideration at the same time as issuing the claim form. These situations will generally be those where some irreversible action will take place unless the hearing of the claim is expedited (para 15.2.2 of the Guide).

14

Second, Form N463 is the standard court form for urgent applications in judicial review cases. It is the application notice, and the critical document for the purposes of an urgent application, to which the judge dealing with the application will normally turn first. In order to make an urgent application, the claimant must complete form N463 and provide the following information which is required to be inserted into the relevant boxes on the application form:

a. The circumstances giving rise to the urgency. If the representative was instructed late, an explanation must be provided as to why their client instructed them at the last moment. If the form is filed only shortly before the end of the working day, an explanation should also be provided as to why the application was not made earlier in the day (para 15.2.3.1 of the Guide).

b. The timescale sought for the consideration of the...

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