R (Gudanaviciene) v Immigration and Asylum First Tier Tribunal
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice David Richards,Lord Justice Moylan |
| Judgment Date | 11 May 2017 |
| Neutral Citation | [2017] EWCA Civ 352 |
| Docket Number | Case No: C1/2015/0848,C1/2015/0848 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 May 2017 |
[2017] EWCA Civ 352
The Right Honourable Lord Justice Longmore
The Right Honourable Lord Justice David Richards
and
The Right Honourable Lord Justice Moylan
Case No: C1/2015/0848
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT
HIS HONOUR JUDGE WORSTER (sitting as a High Court Judge)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Drabble QC & Mr Ranjiv Khubber (instructed by Turpin Miller LLP) for the Appellant
Mr Alex Hutton QC & Mr Paul Joseph (instructed by Government Legal Department) for the Respondent
Hearing dates: 27 th April 2017
Approved Judgment
Introduction
The issue in this appeal is whether the First Tier Tribunal should be ordered to pay the costs of a successful application to judicially review its decision to refuse an adjournment of an appeal.
On 7 th September 2012 Ms Teresa Gudanaviciene (to whom I shall refer as "the appellant") was convicted of unlawfully wounding her partner pursuant to section 20 of the Offences Against the Person Act 1861. She had stabbed him with a knife. She was sentenced to 18 months imprisonment. The Secretary of State for the Home Department decided on 10 th December 2012 to deport the appellant but after much litigation she has been allowed to remain.
She was able to instruct solicitors, Turpin & Miller LLP ("Turpins") who lodged a notice of appeal to the First Tier Tribunal ("the FTT") on her behalf but she had no money of her own. Legal Aid is not available in deportation cases unless an Exceptional Case Determination ("ECD") is made by the Director of Legal Aid Casework to grant Exceptional Case Funding ("ECF"). This can only be done under section 10(3) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 if failure to make the service available would be a breach of
"(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998) or
(ii) any rights of the individual to the provision of legal services that are enforceable EU rights,"
or if there is a risk that such failure would be such a breach. Turpins applied for ECF but the application was refused in early July 2013. They requested a review but the decision was maintained on 26 th July 2013. It was, therefore, necessary to seek permission for the Director's decision to be judicially reviewed.
The FTT conducted a case management review hearing ("CMRH") of the appeal on 5 th August 2013 which was not attended by either Turpins or the appellant but Turpins did write to the FTT requesting the appeal to be adjourned. There were further CMRHs on 30 th October and 4 th November 2013 at which it was decided that the appeal would be heard after 2 nd January 2014. That decision was maintained in spite of further letters requesting an adjournment on the basis that application was being made to judicially review the refusal of the Director to grant ECF. The response from the Resident Judge of the FTT was that the FTT was not concerned with funding. (This was an unappealable decision for reasons explained in para 36 below).
Turpins then informed the FTT that they would have to apply for judicial review of the refusal of an adjournment of the appeal pending the resolution of the application for judicial review of the decision of the Director to refuse ECF. They made an ex parte paper application to Jay J who directed the appeal be so adjourned. He gave both the FTT and the Secretary of State permission to set aside his order on 48 hours notice but neither the FTT nor the Secretary of State availed themselves of that opportunity or took any other part in the judicial review application.
The solicitors then applied for the costs of the judicial review proceedings against the FTT to be paid by the FTT. That application was refused by HHJ Worster on the basis that costs would only be ordered against a tribunal if there had been a "flagrant instance of improper behaviour on its part" as required by R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739 and that no such behaviour had occurred. Lloyd Jones LJ has granted permission to appeal on the sole ground that it is arguable that the test laid down in Davies should be modified in the light of subsequent authority. The question for us is thus whether, in the light of authority subsequent to Davies, the FTT should be ordered to pay the costs of the successful ex parte application before Jay J.
Factual Background in more Detail
Between May and October 2013 Turpins entered into correspondence with the Legal Aid Authority ("the LAA") and the Lord Chancellor in order to obtain funding under the ECF regime for the FTT appeal. The LAA and the Lord Chancellor refused to accept that the case required ECF.
The FTT appeal was listed for a second CMRH on 30 th October 2013. By letter of the same date Turpins wrote to the FTT
i) apologising for their non-attendance at the CMRH listed on that day. This was because they did not have funding to represent the appellant;
ii) saying that were continuing in their attempts to resolve the funding issue in relation to the FTT appeal with the LAA. They had recently received funding to proceed with a judicial review against the LAA and this was to be issued shortly;
iii) stating that they were aware that family court proceedings in relation to the appellant and her daughter were due to be listed for a hearing on the first available date after 1 st November 2013; the outcome of those proceedings was likely to have a significant impact on the extant deportation appeal;
iv) requesting an adjournment so that the case be listed not before 30 th December 2013, when a better understanding could be given as to the funding position and how the parallel family proceedings would impact on the extant appeal; and
v) further requesting the FTT to consider making a direction that funding be provided, or a direction that in the absence of such representation there was a real risk of injustice. They relied on the recent observations by the (then) President of the Immigration and Asylum Chamber Mr Justice Blake in the case of Farquharson [2013] UKUT 146 (IAC) at para 93.
No response was received to this letter before the next CMRH on 4 th November.
At that CMRH the FTT ordered that the matter be listed to be heard after 2 nd January 2014, irrespective of the family proceedings having been completed by then.
The appellant lodged her application for judicial review challenging the decision to refuse ECF legal aid on 12 th November 2013.
By letter dated 18 th November 2013 Turpins wrote again to the Tribunal and requested an adjournment of the FTT appeal that was now listed for 8 th January 2014. The letter stated that:
i) the adjournment request was made pursuant to Rule 21 of the Asylum and Immigration Tribunal (Procedure) Rules;
ii) the FTT had previously been notified of the steps that were being taken to secure funding from the LAA and that a judicial review claim was due to be issued. That claim had now been issued and was listed for a hearing on 15 th January 2014; and
iii) the solicitors requested that the hearing of 8 th January 2014 be adjourned in order to allow the High Court to consider the outstanding judicial review claim against the LAA. Further, it was suggested that the FTT matter could be listed for a further CMRH which would allow the FTT to be updated on developments in relation to the now extant judicial review of the refusal of legal aid.
By letter dated 22 nd November 2013 the FTT responded refusing the request for an adjournment and saying:-
"Reasons
At the hearing on the 4 th November the judge directed the appeal to be heard after the 2 nd January 2014 irrespective of Family Court Proceedings being completed or not.
In the Interest of Justice, Rule 4 overriding public interest in this matter being concluded will be over a year's delay in this case already."
Turpins responded to this letter on 6 th December 2013:-
i) once again relying on Rule 21 of the procedure rules for the purposes of their adjournment request;
ii) saying that the claim against the funding decision made by the LAA was currently with the Administrative Court. A directions hearing had occurred on 3 rd December 2013 before Simler J where various directions were made including that the matter was to be listed for 2 days as a rolled up hearing;
iii) repeating their request that the FTT appeal be adjourned in the light of importance of the issues in the appeal to the claimant, the wider public interest and the application to adjourn the appeal being necessary in the interests of justice; and
iv) requesting that the matter be listed for review after 3 rd February 2014.
By letter of 9 th December 2013 the FTT responded again refusing the adjournment request and saying:-
"The application by the appellant for the adjournment of the hearing of this appeal from 8 th January 2014 is refused for the following reason(s);
The Resident Judge indicates that the Tribunal is not concerned with funding."
In the light of this response Turpins, pursuant to the relevant Pre-Action Protocol, sent a detailed letter before claim dated 11 th December 2013 challenging the refusal to adjourn. In essence they submitted that the decision to refuse to adjourn and the reasons for maintaining that decision were contrary to a proper interpretation of the FTT procedure rules and the common law including the guidance given in the reported deportation appeal of Farquharson. The letter requested a response by 18 th December 2013.
By letter dated 11th December 2013 the FTT responded maintaining its previous decision to refuse to adjourn. It stated:-
"The Resident Judge indicates that...
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