Mohebullah, R (on the application of) v Secretary of State for the Home Department

MR JUSTICE GIBBS: This case has been listed for consideration of judicial review of a decision of the Secretary of State for the Home Department on the application of Mr Fahim Mohebullah who has been making, and continues to pursue, asylum and human rights claims. He is from Afghanistan and originally claimed asylum on 15th November 2000, having arrived clandestinely in the United Kingdom. For reasons which will appear in the brief summary that I am going to give, the claim cannot, it is agreed by both counsel, proceed as a substantive application today. The issues for this court to determine relate to the possible amendment of the claim and to costs.

On 24th January 2001, the Secretary of State rejected the claimant's asylum claim. On 11th November 2001 the claimant appealed that decision to an Adjudicator but that appeal was substantially out of time and was therefore rejected. On 6th January 2003, leave to appeal the Adjudicator's decision was refused by the Immigration Appeal Tribunal. Between 28th January and 5th October 2003, the claimant's representatives made a number of further representations to the Secretary of State in relation to asylum and human rights matters. On 17th October 2003 the Secretary of State considered those representations and issued a letter rejecting the claim, and certifying it under section 96(2) of the 2002 Act.

On 20th October 2003 an application for judicial review was filed on the following two bases. First, that the Adjudicator's refusal of the claimant's appeal was wrong, and second, that the Secretary of State had failed to respond to the various representations. As I have already indicated, the Secretary of State had in fact responded to the representations but, for reasons which are unexplained and probably due to an administrative error in the Home Office, the Treasury Solicitor was unaware of that letter so as to be able to present it to Sir Richard Tucker on the application for permission to bring these judicial review proceedings.

Sir Richard Tucker was therefore presented with a situation whereby a number of representations had been made by the claimant which had apparently gone unanswered, and under those circumstances he granted permission for these proceedings on the basis of the Secretary of State's failure to respond. In view of the letter of 17th October 2003 that was plainly, and unknown to the judge, a mistaken basis upon which to grant permission.

On 16th December 2003 the correspondence, including the letter, came to the Treasury Solicitor's attention, and he realised that it would have a substantial effect on the future of these proceedings. Accordingly, on 22nd January of this year the Treasury Solicitor wrote to the claimant's solicitors telling them of the situation, inviting them to withdraw the judicial review application and saying that failure to withdraw would result in the matter being brought to the attention of the courts regarding the issue of wasted costs. On 17th February 2004, yet further representations were made on the claimant's behalf. On 17th March the Secretary of State issued a fresh decision on the matter. It is germane to consider that decision briefly. It recited at paragraph 3 as follows:

It is pointed out to me, and rightly pointed out by Mr Patel on behalf of the claimant, that in the course of the letter of 17th March 2004 the Secretary of State referred back to previous decisions. In addition, the Secretary of State considered the Human Rights aspect of the claimant's claim and the objective evidence submitted in connection with it, and concluded that the evidence was insignificant in relation to the claimant's alleged fresh claim. The Secretary of State also made it clear in the later correspondence that the earlier decision of 17th October 2003 was withdrawn.

On 5th April 2004 a further letter was sent inviting the claimant to withdraw the application for judicial review, setting out the same reasons as given previously. No express reference was made to costs in that letter. On 17th May 2004, still no response or fresh grounds had been received. On 7th July the Treasury Solicitor wrote yet again, pointing out that the judicial review currently in place related to 20th October 2003 and that claim had now been addressed. The letter concluded:

On 8th July 2004 the Treasury Solicitor wrote to the Administrative Court, notifying them of the difficulties that had been raised. On 12th July, finally, the claimant's solicitors wrote to the Treasury Solicitor seeking consent to an adjournment. The basis of that was that counsel had been away in India and the conducting solicitor had been handicapped by a family bereavement. The suggestion was that there should be consent to the grounds for judicial review being amended. More recently still, the nature of the claimant's proposed new basis of claim has been made clear.

I trust that that is a fair summary of the correspondence which has passed. Both counsel have been invited to draw my attention to any further or different matters in the correspondence which are germane to the issues before me today.

I deal first with the application to adjourn. First, where a claimant seeks to rely on additional grounds in relation to the hearing on a claim for judicial review by CPR 54 PD 11, the court and the other party must be given seven clear days notice of that before the hearing. That practice direction has not been complied with in this case but, all other things being equal, it would not be, in my judgment, a decisive factor in refusing leave.

A far more potent factor is the delay that has occurred since the fresh decision of the 17th March 2004. It is, in my judgment, quite obvious in the light of that decision letter and the events leading up to it that the sole ground upon which permission to bring judicial review proceedings was given by Sir Richard Tucker had now fallen away and become irrelevant. If that were not already clear, it was made clear by the Treasury Solicitor in the correspondence to which I have referred. Accordingly, if an amendment was to be sought, it could and should have been sought promptly after 17th March. The delay until notification of the proposed amendment has been in excess of three months, and a day or so short of four months. In my judgment, that delay is, in the circumstances of this case, without justification; amendment, for that reason, should be refused.

In considering whether the application to amend should be granted or refused, I have considered the justice of the case. In particular, I have considered whether or not the claimant would be put at an unjust and unfair disadvantage by being shut out in relation to any genuine claim that the amended grounds might reveal. But the fact of the matter is that any amendment in this case would, in substance, constitute the deletion of the original claim and the substitution of a claim which would challenge the letter of 17th March. Of course it is right, as Mr Patel said, that there is reference back to earlier correspondence, but 17th March 2004 is now the only decision which can be challenged. Not only that, but, as already stated, the basis on which the previous permission to grant judicial review was given has disappeared entirely, and it is quite clear that if the letter of 17th October 2003 had been available it is most improbable that Sir Richard Tucker would, in fact, have granted that permission at all.

Further, there is this important factor which I drew to Mr Kellar's attention and which he adopted on behalf of the Secretary of State. In considering the delay since 17th March 2004, it is pertinent to note that if the court were considering fresh judicial review proceedings brought to challenge that decision, it would be nearly a month out of time if one takes the time to be three months. It is arguable in this case that since the parties were already well engaged with the issues, a period of less than three months would be appropriate, but I am content to take three months as the right period.

This in my judgment, supports the proposition that I should refuse leave to amend. It seems to me that the appropriate course, if there are grounds to challenge the decision of 17th March 2004, is for fresh proceedings to be issued and for permission to be sought on the merits in relation to any new grounds. If I were simply to allow an amendment today it would, in effect, be to bypass the requirement that the new grounds should pass the arguability test for granting permission for review. It is true that any new claim for judicial review, or application for leave to bring a claim, would have to overcome the point about delay, but that too, I think, is far from unjust. Indeed, it is right that such delay should be explained, if it can be explained, before the hurdle of obtaining permission is overcome. For all those reasons, in the exercise of my discretion, I refuse leave to amend.

I now come to the question of wasted costs. It does seem to me that, on the face of it, the correspondence drawn to my attention by Mr Kellar and the lack of response to it until well after the 11th hour, do constitute grounds for considering making a wasted costs order. It is also true, according to the relevant practice direction, that the court does have a discretion to proceed without adjourning the hearing if it is satisfied that the legal representative against whom the wasted costs order may be made has had a reasonable opportunity to give reasons why the court should not make such an order.

Mr Patel tells me that he is without instructions today and he has not had an opportunity to consult those instructing him, and he points to various personal difficulties and problems that his instructing solicitor has had. I am bound to say that whilst one has, of course, considerable sympathy with personal problems, particularly problems such as those arising out of bereavement, the reasons given and the combination of them, in relation to a firm of solicitors holding itself out as able to provide proper representation in cases of this sort, are not adequate. I think, on balance, it would not be fair to make a wasted costs order today. I therefore propose to set this matter down with a notice to show cause as to why such an order should not be made, on a date to be fixed no later than the end of this term, 30th July.

Mr Kellar, one of the problems about this sort of procedure is that the making of a wasted costs order, if a case has to be adjourned, itself incurs further costs. I recognise that.

MR KELLAR: Yes.

MR JUSTICE GIBBS: Entirely without prejudice to the outcome of any future hearing on a notice to show cause, one of the options that I had in mind in circumstances of this particular case was to make a wasted costs order which was less than the full amount of the wasted costs. In other words, it was not, in my mind, going to be an argument about all or nothing.

MR KELLAR: That could be made today?

MR JUSTICE GIBBS: No, no, that was not what I had in mind. What I had in mind was, since I have made the statement of the prima facie applicability, it may be a matter which can be settled by agreement. Mr Patel, you have heard what I have said.

MR PATEL: Yes, my Lord.

MR JUSTICE GIBBS: I am trying to be helpful. If a sensible agreement can be made as to a significant proportion of the costs, it may save the court's time and costs. Otherwise I may have to come back and hear it. I think I ought to be the person to hear it or to reserve the matter to myself.

MR KELLAR: Is it just that my learned friend and I have five minutes to agree this or do we just deal with it in correspondence?

MR JUSTICE GIBBS: Well, I do not know whether Mr Patel is in a position to take instructions now.

MR PATEL: My solicitor has just turned up, my Lord.

MR JUSTICE GIBBS: I will give you until quarter to four.

MR KELLAR: I am very grateful for the time, but I am afraid we have not managed to reach agreement so the original order will have to stand. There is one matter just to dot the 'I's and cross the 'T's. In so far as costs are concerned, clearly as far as it were to be decided that some costs were not wasted, clearly no costs should be footed by the Treasury Solicitors for the proceedings. The claimant brought an unsuccessful claim for whatever reason. I am not sure of the proper wording, but would the appropriate order be: As far as costs are not wasted they be borne by the claimant.

MR JUSTICE GIBBS: Yes, I think it would, yes. I am not going to argue about it today. If the wasted costs order is not agreed today then the matter of costs, generally, can be adjourned to the show cause hearing. The parties will have leave, if agreement is reached in the meanwhile, to apply in writing to have that hearing vacated with a consent order.

MR KELLAR: I am grateful, my Lord.

MR JUSTICE GIBBS: By way of observation, if the claimant is not legally assisted, on the face of it, the result, in so far as the wasted costs order is not made, would be the claimant himself would have to bear the costs. That is a factor which may have to be drawn to my attention if it is necessary to have a show cause hearing.

MR KELLAR: Thank you, my Lord.

MR JUSTICE GIBBS: So far as the listing of the hearing is concerned, my whereabouts are uncertain. I am certainly in the Court of Appeal Criminal Division for the next week or so. Could you see whether an agreement can be reached? In the absence of an agreement, would you please liaise directly with my clerk. I think that would be the most effective course. We must dispose of this matter by the end of July at the latest.