27 Feb 2017, 13 mins ago

In a spate of recent decisions from the President of the Upper Tribunal (Immigration and Asylum Chamber), Mr Justice McCloskey warned representatives of both Applicants and the Secretary of State, that “[p]ersistent and egregious non-compliance with Upper Tribunal orders, directions and rule will attract appropriate sanctions.” 

The case of Sabir Ahmed and others (sanctions for non-compliance) [2016] UKUT 562 (IAC), handed down on the 1 December 2016, was one in which the wrath of the Tribunal was expressed throughout the judgment.  The headnote is striking. It is quite apparent that after a litany of failings including inter alia both sides failing to comply with directions issued by the Tribunal; failing to update the Tribunal, or request variation of the directions or request a case management hearing; and the Applicant’s representative failing to file either a bundle or skeleton argument, the Tribunal had lost patience. At [7] of the judgment Mr Justice McCloskey describes the behavior of the parties as “cavalier and unprofessional.” Subsequently going on to state that “[t]he rule of law has been weakened in consequence.” 

The Tribunal then set out the repercussions of conducting litigation in this manner: including wasted costs orders; reported rulings of such failings and consideration to be given to the Tribunal exercising its contempt of court powers as well as referring individuals involved to the relevant professional bodies. This can only be seen as a stark warning to all those who conduct litigation in the Courts. It is indeed reminiscent of the Hamid-style cases and judgments handed down by the Administrative Court in 2012. 

In a judgment handed down less than three weeks ago, Mr Justice McCloskey again sets out the Tribunal’s stall in the headnote: “(i) Counsel’s duty is owed to the client. It does not extend to defending non-compliant instructing solicitors. (ii) It is for non-compliant instructing solicitors to defend themselves by proactively arranging their attendance before the tribunal in appropriate circumstances.” The case is helpfully entitled VA (Solicitor’s non-compliance: counsel’s duties: Sri Lanka) [2017] UKUT 12 (IAC).  

In that case, the Tribunal refers to being “black mailed” into adjourning the hearing, in order to give effect to the Applicant’s right to a fair hearing – which in this context was proper legal representation. Mr Justice McCloskey goes on to set out once again that the Tribunal will not hesitate to have full recourse to its powers to ensure that the parties do not abuse the Tribunal’s processes and have regard to the overriding objective. 

Finally, the Tribunal drew the parties attention to the Code of Conduct contained in the Bar Standards Handbook (2nd ed), Part 2B (“The Core Duties”) and Part 2C (“The Conduct Rules”) in particular. It was highlighted that counsel’s duties are owed to the court/tribunal and client; Mr Justice McCloskey opines that there is no mention of ‘instructing solicitors’. Once again, this case highlights the importance of conducting litigation, and that representatives in such claims, for both the Applicant and the Secretary of State should not engage in litigation lightly. 

The final case handed down in this sequence of cases following the theme of compliance and duties owed to the Court/Tribunal, is Saha & Anor, R (on the application of) v Secretary of State for the Home Department (Secretary of State’s duty of candour) [2017] UKUT 17 (IAC). The judgment is written with equal vigor and the Tribunal does not mince their words. 

In contrast to the earlier two cases, it is the Secretary of State, often the Respondent in immigration judicial review claims before the Upper Tribunal. However it would seem that even the Executive, who are often perceived as having a wider playing field in terms of compliance with various rules and directions, can no longer escape the wrath of the Tribunal. Once again, the headnote helpful displays the premise of the judgment: 

(I) It is impossible to overstate the importance of the duty of candour in judicial review proceedings. Any failings by the Executive in this respect threaten the guarantees upon which judicial review is founded and are inimical to the rule of law.

(II) A failure by the Executive to conduct judicial review proceedings with the necessary degrees of candour, efficiency and attention compromises the ability of its legal representatives to discharge their ethical and professional duties.

(III) All of the aforementioned duties are encompassed within an overarching obligation of good faith rooted in respect for the rule of law.

(IV) Failings of this kind may be reflected in various ways, including how the judicial exercise of discretion in the matter of costs is performed.

The Tribunal describes the Secretary of State’s case at the final hearing as being in “disarray” [4], before going on to list the catalogue of issues with the procedural history and the startling development at the end of the three day substantive hearing where the Respondent sought to adduce new evidence without having obtained the Tribunal’s permission to do so, as is standard procedure. The background to the claim was a challenge to the TOEIC certificates in respect of PSB clients taking English language tests. The pertinent section of the judgment is set out at paragraphs [45] – [51]. 

Mr Justice McCloskey finds that the Secretary of State’s failure to comply with her duty of candour (occasioned by the difficultly caused by her client) caused damage to the overriding objective and lead to the “”unholy trinity” of increases cost, excessive delay and multiple complexity, all pre-eminently avoidable”.  Whilst the Applicants lost their judicial review, they were awarded their costs on an inter partes basis owing to the Secretary of State’s behavior in producing and filing evidence at the 11th hour, which fundamentally altered the basis of the Applicants’ claim. 

The case of VA, like Saha and Ahmed, goes to show that the Tribunal will not hesitate to dispense the powers available to them in sanctioning in the parties, and compensating the parties where relevant. 

All representatives litigating in either the Court or Tribunal should ensure that to avoid the “unholy trinity” of wasted costs, excessive delay and additional complexity, that they ensure compliance with directions; seek to vary where necessary; always keep the Court or Tribunal updated as to the progress and where possible explain, in advance, any foreseeable shortcomings in compliance with directions. Understandably the Court or Tribunal prefers to be involved in the conversation rather than kept in the dark. 

Only experienced and well-versed representatives, who can master the overriding objective and keep it the forefront of their mind throughout the litigation, need apply.