Written and recorded by Ben Amunwa, 36 Group
Hello, I'm Benham Anwar. I'm a barrister at 36 Group practicing in public and commercial law. Welcome to my webinar on wasted costs Orders in Immigration cases. This part focusing on judicial reviews. So what we're going to learn in this webinar is the following. First of all, we're going to understand which kinds of conduct in judicial review proceedings carry the highest risk off wasted costs orders being made on. Secondly, we're going to identify by reference to the key cases and their principles relating to waste costs. Orders how to avoid or minimize the risk off a wasted costs order being made against one. So judicial review. Inherently a risky, fast moving and unpredictable jurisdiction carries with it a particular risk in terms off wasted costs that risk waas underscored by the law society in a January 2016 practice note on immigration Judicial Review. And it makes clear that there are a number of hazards to be avoided in this area and reminds practitioners off the need to comply with directions and follow procedural rules. Onda number off recent cases have highlighted in quick succession the need to comply with procedure rules, in particular the Upper Tribunals 2008 Procedure rules. In addition, of course, to every sinister and every lawyers duty to the court and the need to abide by that as well. The first case I'm going to look at is a high court case called Ashraf Andi. These extra state for the home department that's a 2013 case with a full citation in your reference sheet on the high Court in that case reminded practitioners that it can be an abuse off the courts procedures where claimants launched a judicial review claim against an underlying immigration refusal removal decision. Andi try to use the administrative court of the High Court instead of the upper tribunal by basically tacking on a challenge to a person's detention. Of course, there may be legitimate reasons for tacking on a detention claim to a removal or refusal decision challenge. But if you do that without indicating any kind of substantive merit to the detention claim, then you are into possible abuse of process territory. And just to recap in the background, of course, is the first of November 2013. Change in the law, which decided that the vast majority off immigration judicial reviews must be heard in the upper tribunal, not in the administrative court of the High Court, because they all rather inundated with them in that court. And so, whereas previously, the upper tribunal only had jurisdiction over challenges to refusals off fresh planes. Under Rule 353 off the immigration rules since November 2013 1st November it has had jurisdiction over a vast range off on the vast majority off immigration, judicial reviews and some practitioners. I prefer to bring claims in the administrative court because the judge is there are thought to be of a higher quality, perhaps fairer, perhaps a bit more open minded to certain arguments. But you could only do that if you're playing properly, belongs in the admin court, and it properly belongs in the admin court if there is a substantive detention element to it, or if it is in the list. In the Lord Chief Justice is practice statement that takes it outside of the jurisdiction of the upper tribunal on into the jurisdiction of the Administrative Court. What Ashraf reminds us is, don't try and pull a fast one. In order to get into the administrative court, you got toe have good grounds for on eligibility for a bringing a judicial review claim there rather than the upper tribunal moving on. As we've got a number of cases to get through, the next case I want to talk to you about is called Bilal Mahmood, and that's a 2014 case. Again, it's a judicial review, but it's an upper tribunal. Judicial Review Decision Andi Bilal Mahmood is authority for proper proposition that where an application for judicial review is over, taken by subsequent events and in particular, subsequent decisions that are taken by the secretary of state. Let's say a person is challenging a refusal of the fresh claim. Andi, in the process of challenging that Lee logs judicial review proceedings and application is on foot. But whilst the parties are waiting for a decision on permission, the sector state effectually concedes that the original decision is wrong and produces a new decision. Withdrawing the old one on seeks to rely on that new decision so way you have an event that overtakes at the facts, as they were at the time off the application for judicial review. It is incumbent upon on applicants, solicitors and legal representatives to update the tribunal that is a pro active duty. That's not something that can be done at the final hearing. It's not something for a claimant solicitors to be relaxed about. It's a pro active duty as a party to judicial review proceedings to keep the upper tribunal informed on, For instance, if a new decision has been produced and if the claimant is seeking to challenge that new decision as well as or instead off the original decision, then the claimant solicitors must put that forward to the upper tribunal must make an application to amend the ground so as to include the challenge to the new decision on the new decision itself should be included as evidence in the application. So those are quite important point about the practices that are expected off parties in judicial review proceedings. But it also in Bilal Mahmood reminded applicants a listers that there is another ongoing duty on their shoulders and that is to constantly evaluate and re assess the merits off bringing the judicial review application. If at some stage during the application particularly, let's say, after the respondent has produced a summary grounds of defense. If when you receive that summary grounds of defense. You think actually, the secretary of state has a good point there on. Actually, the merits of this plane aren't so good after all, and I should probably withdrawal this point and that point and reshape it a bit. If that is the case, then it's incumbent upon the applicants listers to tell the tribunal that that is the case and to take any requisite procedural steps. And in particular, one will be thinking about applications to amend in this context, so remain alert to those eventualities. Respond to unfolding events and changes in the complexion and strength, A weakness off your case. If you fail to do so, that may not only for the basis off a costs application against you that may well form the basis or a wasted costs order being made Next we come to the case off S n. That is again an upper tribunal Immigration Judicial review decision. It is from 2015 so moving forward in chronological order and it provides the following guidance. First of all, the tribunal observed that where people are appearing before it, who are unrepresented litigants in person without a lawyer, then the full rigours off the upper tribunals. Procedurals should ordinarily apply. There's no exception for litigants in personal people. Without lawyers. They can't just get away with flagrantly breaching the procedure, rules and directions. And so if they ignore them and seriously ignore them, AII flout directions here and there ignore reminders to comply with directions. Then they will be subject to the full force off the tribunal's procedural powers in a similar way. Lawyers who are working pro bono so for free in cases before the upper tribunal must comply with directions. There's no excuse. There's no exception that will be made for them, that in principle they are required to uphold normal professional standards in all the work that they do. The tribunal underscored the importance of complying with time limits. It's frequently the case that parties will at times ignore or overlook the time limit set by the up tribunal. That should not happen, comply with directions or face the potential repercussions in the form. Of course, orders, repeated breaches are going to be treated more seriously than isolated lapses, and that is simply common sense. But it's worth emphasizing it's not acceptable for the particulars in judicial review grounds to be lacking. You have to set out in detail the grounds on which you're challenging the decisional decisions that you are applying for judicial review against Andi, where fresh decisions are made following the filing of a judicial review claim on the date off any subsequent hearing, you need to apply to amend the grounds and specify which decision that you're challenging if you're going to pursue a challenge against the new decision. And again, that's really an echo or off the case off Allama mood and the guidance in there. So what then? Has the up tribunal added in more recent years? So the case off Shabbir Ahmed on others, a 2016 case on some relevant considerations the tribunal's effectively being at pains to stress to applicant parties and to claimant lawyers that it will no longer tolerate a lax approach to obedience to its directions and to the overall procedure. But requirements in its procedural rules and Shabbir Ahmed was a case in which all the parties, both the claimant lawyers and the secretary of state's lawyers have failed to comply with directions. Following the adjournment off an appeal hearing, President McCloskey giving judgment in Shabbir Ahmed slammed the disgraceful I quote conduct off. The lawyers involved on DSI said that the upper tribunal have been treated with sustained and marked disrespect. The conduct of these appeals has bean cavalier and unprofessional, he went on. To add on this is really where the years prick up. In terms off wasted costs, the upper tribunal will henceforth have recourse to the full panoply off sanctions at its disposal. These including particular wasted costs orders. There will also be reporting of rulings off this kind. Furthermore, consideration will be given to the invocation of the upper tribunals. Contempt powers, together with referrals to professional bodies on this list, is in that case were required to provide a draft order by the end of the day, setting out how they wanted the appeals to be disposed of without prejudice to the upper tribunals power to refuse to comply with such a draft order on to actually make wasted costs orders. So although this case arises from the stack statutory appeals context, the guidance is so strongly worded. This is something that all practitioners in judicial review and appeals need to be aware off the next case V A Solicitor's Noncompliance 2017 is another case in a similar vein. Again, the upper tribunal woefully surveyed conduct in this proceeding the appeal proceedings and stated that it had bean effectively blackmailed by the claimants lawyers into adjourning the hearings on. And this was due to the solicitors lack of preparation, which had basically rendered a fair hearing impossible. And President McCloskey observed again that the upper tribunal would have recourse to its full range of powers, including wasted costs. Orders Andi that where solicitors default in their conduct off proceedings. This is paragraph 10 whether by non compliance with procedural rules or practice directions or specific case management directions or otherwise. It forms no part off instructed councils duty to defend the instructing solicitor. So what the president is saying here is that he's had enough or barristers turning up defending the defaults or misdeeds off solicitors in terms of procedural problems. This is something that's a listers need to explain themselves. Paragraph 11 Council must also be alert to the inevitability of a penetrating judicial inquiry in cases where professional default off the kind of manifesting itself in this appeal occurs, it would be prudent of counsel to proactively ensure that the instructing solicitor is in attendance at the hearing. In such cases, taking into account what I said about the true nature of counsel's duty, the tribunal will not expect to hear from counsel unless personally implicated in circumstances off this kind. Rather, the solicitor having carriage of the case must pro actively and fully equipped attend. And so there's a very clear expectation there that part of the solicitors role in assisting the court is to show up Andi provide any explanations required for serious defaults in procedural terms and that barristers will not be expected to fill that that gap if the solicitor has not attended and the upper tribunal in V A have required the principal solicitor of the relevant firm in question to attend the tribunal in person the following morning to explain the history of the proceedings on to send a witness statement in advance off that appearance, explaining all the material issues so clearly, the upper tribunal was deeply unhappy in both of these cases with claimants solicitors conduct was not satisfied with council but being used as at some kind of human shield or a scapegoat, Andi reminded barristers and solicitors off their separate and distinct roles in relation to providing the tribunal with adequate explanations off any relevant procedural failures. And again, hovering in the background is President McCloskey's that stark and dire warning that in future failure off this nature and failure to comply with the rules will lead potentially to wasted costs. Orders being made. Thank you very much for listening to this webinar Hope you found it useful. Hope you never face a wasted costs. Order yourself. But if you do, then the guidance in this webinar will hopefully hopefully step stand you in good stead. I will see you next. Webinar, which will look at urgent applications in the concept of concepts of judicial review on the particular risks off adverse costs, orders, wasted costs, orders in those scenarios, take care.
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