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

MR JUSTICE BEATSON: On 8th April 2004 the claimant launched these judicial review proceedings, challenging the Secretary of State's decision, dated 5th March 2004, maintained in letters dated 7th and 25th October, to reject her claim that to remove her to Greece, in accordance with the Dublin Convention, would be a breach of article 3 and 8 of the European Convention on Human Rights.

The renewed application for permission came before me on 2nd July. Permission was only given in respect of the Secretary of State's decision to certify the claim as clearly unfounded under section 93(2)(b) of the Nationality, Immigration and Asylum Act 2002.

The claimant is originally from Kosovo. She arrived in the United Kingdom from Greece with her husband and two children on 24th October 1997. Their Yugoslav passports bore Greek visas, issued to them on 20th October by the Greek Embassy in Belgrade. Her husband claimed asylum on arrival, with the claimant and their children as his dependents.

On 24th November 1997 the Greek authorities accepted that, under the Dublin Convention, Greece was responsible for considering their asylum claim. The claims to asylum, including the claimant's as a dependent, were certified, pursuant to section 2(2) of the Asylum and Immigration Act 1996. The certification letter was served on 1st December 1997.

The claimant's immigration history thereafter shows a pattern of repeated failure to report for removal, litigation, and changes of solicitors. This case is also another example of the problems faced by this court in dealing with the review of decisions where the facts or the evidence presented to the court by the claimant differs from that presented to the defendant at the time of the decision that is being challenged. On 5th March, when the decision was originally taken, the only medical evidence put before the Secretary of State by those representing the claimant was a report, dated 12th September 2003, by a consultant psychiatrist, Dr Philip Steadman. The judicial review bundle, however, contains a letter dated 11th September 2001 from Dr Turvill, the claimant's general practitioner, and one dated 13th December 2001 from Dr Sheilagh Davies, a consultant psychiatrist to whom her GP referred the claimant. A further letter from Dr Davies, dated 7th April 2004, the day before these proceedings were launched, was not before the court on 2nd July at the hearing of the application for permission. Mr Juss stated this was because his instructing solicitors had not got a copy of the letter at that time. The letter was, in fact, only served on the defendant immediately before the hearing on 12th October before Silber J to consider the substantive application. That hearing had to be adjourned to enable the defendant to consider this and a further letter from Dr Davies dated 5th October, and to make a further decision in the light of that.

As Sullivan J said in R (Sopa) v Secretary of State for the Home Department [2004] EWHC 904 at paragraph 8:

Before turning to the substance of the appeal, I summarise the claimant's complex immigration history. Removal directions were initially put in place for 5th December 1997. They were cancelled but reinstated for 11th December. On that day, the claimant and her family failed to report from removal and launched judicial review proceedings. Those proceedings were stood out to await the outcome in the cases of Elshani and Berisha. After leave to appeal to the House of Lords in those cases was refused on 17th November 1999, the defendant invited the claimant's then solicitors to withdraw the judicial review. It was ultimately withdrawn in September 2001. In October 2001 the claimant's representatives alleged that a return to Kosovo would breach her human rights. This was certified as being manifestly unfounded under section 72 (2) (a) of the Immigration and Asylum Act 1989. Notwithstanding threatened judicial review proceedings, the defendant refused to suspend removal directions for 26th November 2001. The claimant and her family failed to report on that day and 3rd December and were therefore treated as immigration absconders.

She made a further human rights claim in 2003 and it is the certification of this which is the subject of the present proceedings.

On 17th June the House of Lords gave its decision in Razgar v Secretary of State [2004] 2 AC 368 and that case was at the centre of the submissions made at the hearing on 2nd July and the present hearing. That case recognised that, in principle, the rights protected by article 8 can be engaged by the foreseeable consequences for health of the removal from the United Kingdom, pursuant to an immigration decision; even where such removal does not violate article 3, provided the facts relied on by the application are sufficiently strong. It was held that the evidence that Mr Razgar, an Iraqi of Kurdish origin, who the defendant proposed to remove to Germany on Dublin Convention grounds, would attempt to kill himself if removed, meant that his claim could not be characterised as manifestly unfounded. The Secretary of State's certificate was, accordingly, quashed.

Since, in the present case, permission was only give in respect of the challenge to the certification, on the basis of the decision in Razgar, I indicated that the defendant should reconsider certification of the claim in the light of it. The defendant did so and in a letter dated 7th October maintained its position. It will be recalled that the adjournment of the hearing on 12th October was to enable the defendant to consider the two letters from Dr Davies and to make a further decision in the light of them. The defendant did this, but again, maintained its position, giving its reasons in a letter dated 25th October. The 5th March and 7th October decision letters make it clear that the Secretary of State considered that if, contrary to his clear views, article 8 was engaged by the claim, he also considered the argument that any alleged interference with the rights under article 8(1) was not proportionate and justified under article 8(2) was clearly unfounded.

I have stated that the claimant's form N461 relies on both article 3 and article 8. Article 3 was, however, not pursued at the hearing. Mr Juss's submissions were confined to article 8. In the circumstances of this case, the claimant's position is not affected by this. If the Secretary of State is entitled to conclude that the claim under article 8 is bound to fail, he is also entitled to conclude that the claim under article 3, relying on the same material, is bound to fail.

I turn to the medical evidence. Mr Juss primarily relied on Dr Davies' letter dated 7th April 2004. This letter records the date of the arrival of the claimant and her family into the country, that their applications had been refused, that they had been unable to work and received no benefits, and that the children were well-integrated in the schooling system. It records that the claimant was referred to the North Camden Mental Health Services Psychotherapy Unit in 1998 by her general practitioner and has attended for periods of treatment since, mostly under Dr Davies' care. An earlier letter from Dr Davies stated the claimant had been under her care since July 2000.

Dr Davies states that she understands that the patient's mother, living in Australia, suffers from schizophrenia and is seriously incapacitated. She also states she understands the claimant, who at some point prior to coming to the UK, had lived in Libya for 11 years, came with a doctor's statement that she had suffered from a psychotic episode herself in 1996, which was treated with anti-psychotic medication. The material part of the letter states:

On 5th October, apparently in response to a request by the claimant's solicitors, Dr Davies wrote to the solicitors, confirming that claimant's mental state and situation remained as set out in the letter of 7th April, and that stating the risks to her mental health, if deported, stood.

I have referred to other communications from medical practitioners. As far as consultant psychiatrists are concerned, the first in time is Dr Davies' letter dated 13th December 2001. Dr Davies then advised that the decision to remove the claimant be reconsidered and, if possible, reversed. She stated that the claimant was suffering from significant anxiety and depression and was treated with medication. She stated that the family was facing a devastating upheaval and would suffer a great deal.

Next, there is Dr Philip Steadman's report, dated 12th September 2003. This states that the claimant was distressed through the assessment, that she was anxious and depressed but not psychotic, when he saw her. He also states that though the claimant described herself as sometimes wishing she could just go to sleep and not wake up, she told him she would never kill herself because of the children.

The defendant's original decision and its reconsideration on 7th October, considered that Dr Steadman's report did not demonstrate that the effect of removal on the claimant came close to meeting the threshold set in "N" v Secretary of State for the Home Department [2003] EWCA Civ 1369 of being an affront to humanitarian principles. The letter dated 25th October recognised that Dr Davies' April 2004 report goes significantly further than Dr Steadman, and significantly further than Dr Davies herself had in her previous opinion of 13th December 2001, but provides no clinical analysis for this change.

The arguments set out in that letter were, in substance, advanced by Miss Anderson on behalf of the defendant at the hearing. After quoting the statement in Dr Davies' letter that "there would be massive implications for the children who have never been to Kosovo", the defendant states that it is clear that Dr Davies' opinion is founded upon her belief that the claimant and her family will be returned to Kosovo. Of Dr Davies' opinion that the claimant is suffering from "intermittent suicidal ideation" and that her removal would be likely to "precipitate a serious deterioration in her mental state with a strong possibility of her becoming actively suicidal and psychotic", the defendant states that these symptoms are not supported by any clinical evidence and appear to relate to statements only by the claimant. It is said that the assertion that removal will precipitate her becoming actively suicidal or psychotic is entirely speculative. The conclusion in this part of the letter is that in the absence of any critical assessment of the claim, there is no expert evidence as to whether it is an understandable attempt to seek to obtain the benefits of remaining in the UK or an organic medical condition over which the claimant has no control. It was not accepted that the material supported the conclusion that any intermittent suicidal ideation of Mrs Mehmeti satisfied the test for breaches of articles 3 or 8 of the Convention in Bensaid.

I turn to the submissions of the parties. Mr Juss submitted that the proposed removal is an interference with the claimant's private life in the sense that it is an interference with her physical and psychological integrity and thus within the concept of private life. While he relied on the fact that the claimant and her family have been here for seven years, he primarily relied on the evidence of her mental health problems if she is removed and in particular what is said in Dr Davies' April letter. He submitted that Dr Davies' evidence shows that this case is similar to Razgar's, where it was recognised that rights protected by article 8 can be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision if the facts relied on are sufficient sufficiently strong (see Lord Bingham, paragraph 10). Mr Juss submitted that this is arguably such a case and, thus, not a suitable case for certification. While an application for judicial review of a decision to certify is an exercise of the supervisory jurisdiction, in his speech in Razgar, Lord Bingham stated at paragraph 16 it involves the careful scrutiny that these courts are used to applying and is called for where an irrevocable step, potentially involving a breach of human rights is in contemplation.

His Lordship also stated at paragraph 17 that the task of the reviewing court is to consider how an appeal would be likely to fair before an adjudicator.

His Lordship sets out the five questions inevitably referred to in cases such as this which an adjudicator is likely to have to answer in a case where removal is resisted in reliance on article 8. In this case I am concerned with the second and fifth of those. The second is: if the proposed removal will be an interference by a public authority with the exercise of the claimant's right to respect for her family or private life, whether such interference will have consequences of such gravity as potentially to engage the operation of article 8. The fifth is whether, if article 8 is engaged, the interference is proportionate to the legitimate public end sought to be achieved.

Mr Juss accepted that in this case he derived no assistance from the third and fourth questions since the certification was "in accordance with the law" and it is well recognised that immigration control is "necessary in a democratic society."

On the second question, Mr Juss notes that in Razgar's case there was psychiatric evidence that Mr Razgar would attempt to kill himself if removed to Germany in accordance with the Dublin Convention. It was in the light of that evidence that the House of Lords affirmed the decision of Richards J in the Court of Appeal that given that evidence, Mr Razgar's claim could not be characterised as manifestly unfounded and quashed the certificate.

In the present case, Mr Juss argues that Dr Davies provides psychiatric evidence of suicidal ideation and gives her opinion that there is a strong possibility that the claimant would become suicidal or psychotic if removed to Greece. Mr Juss relies on the fact that at this stage the court is obliged to take the medical evidence as correct, and on that basis he submits that the medical reports in the present case make it clear that this is not a case where it can be confidently said that an adjudicator hearing the evidence would not find a violation of article 8 rights.

Mr Juss submitted that Djali [2003] EWCA Civ 1371, on which the defendant relied, is distinguishable because in that case, at most, the claimant's return to Kosovo would have imperiled her prospects of a better recovery (see Simon Brown LJ at paragraph 17).

Finally, anticipating Miss Anderson's reliance on the decision of the Immigration Appeal Tribunal in HY v Secretary of State for the Home Department [2004] UK IAT 00048, Mr Juss submitted that I should not have regard to the criticisms made of Dr Steadman's report in that case. He also submitted that what the Tribunal said in that case about the need for caution in dealing with the reports based solely on the statements made by the person seeking the report (see paragraphs 40 and 47 of the decision) was guidance to subordinate adjudicators and not superior courts. While that is undoubtedly true, it should not be forgotten that in considering the review of a decision to certify, the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator.

On behalf of the defendant, Miss Anderson submitted that the authorities, in particular the decisions in Bensaid v UK [2001] 33 EHRR 205, Razgar and Djali, show that the threshold for engaging article 8 is a high one and it is clearly not met in the present case. In Bensaid, risks of removal of the applicant to Algeria as a result of his long-standing schizophrenia were held not to engage article 8. She also relied on Lord Bingham's statement in paragraph 4 of his speech in Razgar, that Henao v The Netherlands Application No 13669/03 showed that removal cannot be resisted merely on the ground that medical treatment or facilities are better or more accessible in the removing country than in the country to which a person is to be removed.

With regard to the arguments based on the claimant's mental health, Miss Anderson submitted that this case was significantly different from Razgar's case. In Razgar's case there was evidence which the Secretary of State could not discount in the context of certification that Mr Razgar feared ill-treatment in Germany, where he had been previously detained and while in detention had suffered racist abuse and experienced post-traumatic stress disorder flashbacks of his incarceration and severe brutality in Iraq. In the present case, she submits there is no evidence that the claimant feared ill-treatment in Greece.

She also submitted that the medical evidence in this case was far weaker than that in Razgar. There were four reports over a 16 month period. The psychiatrist stated that, if sent to Germany, Mr Razgar would make a serious attempt to kill himself and one report referred to two abortive attempts by him to kill himself. In the present case, Dr Steadman's evidence showed only anxiety and depression. Miss Anderson criticised Dr Davies' letter of 13th December 2001 as providing no clinical analysis of the relevant question: the effective removal on the claimant's health. She argued, as the defendant's letter of 25th October had done, that the letter of 7th April appeared to be founded on the mistaken assumption that the claimant and her family would be returned to Kosovo. She also argued that it contained no clinical analysis to support the doctor's opinion that deportation would be very likely to give rise to the strong possibility of the claimant becoming actively suicidal. She submitted this letter provided no assistance on the question of the effect of removal to Greece.

Miss Anderson also submitted that if, contrary to her primary submissions, it might be said that removal to Greece in the circumstances of this particular case has consequences of such gravity as potentially to engage the operation of article 8. The Secretary of State was entitled to rely on article 8(2) to justify certification. Article 8(2) had not been considered by the Secretary of State or by Richards J in Razgar. Miss Anderson argued that it is clear that this is not one of the small minority of exceptional cases in which it is not possible confidently to state that interference is proportionate to the legitimate public end to be achieved. She relied on Lord Bingham's statement at paragraph 20 of Razgar, and his view that the statement in Kacaj [2002] Imm AR 213 that "legitimate control will almost certainly mean" that interference will not be disproportionate, and while criticised by the Court of Appeal in Razgar as overstating the position, only did so to a small degree.

The second of the questions Lord Bingham stated an adjudicator would have to answer in considering a case such as the present, is whether any interference with an individual's private or family life has consequences of such gravity as potentially to engage the operation of article 8. The fact that this claimant has been in this country for a long time is not of assistance. Her asylum application was refused on third country grounds seven years ago and, as in R (Sopa) v The Secretary of State for the Home Department [2004] EWHC 904 Admin para 17, the Secretary of State was entitled to take into account the fact that since then she has been well aware that he was of the view that she had no right to be in the United Kingdom and that she would be returned to Greece as soon as it was legally possible to do so.

So far as the risk to her mental health, if she is removed, is concerned, the threshold in such cases for engaging article 8 is, as Miss Anderson submitted, and as cases such as "N" v Secretary of State for the Home Department [2003] EWCA Civ 1369 show, a high one. In Razgar, Lord Carswell at paragraph 72 stated:

Djali [2003] EWCA Civ 1371, while an example of the high threshold required in such cases, is of limited assistance on the facts of the present case because, as Mr Juss argued, in that case, at most, the claimant's return to Kosovo would have imperiled her prospects of a better recovery. While the medical evidence in Djali stated that removal would have a detrimental effect on the claimant's health, it gave no indication of what that detriment might be or its severity (see paragraph 9 of the Immigration Appeal Tribunal's determination quoted in paragraph 11 of Simon Brown LJ's judgment).

In the present case there is no evidence of a risk that the claimant would not receive appropriate treatment for her mental condition if returned to Greece. I note that the letter of 25th October states that the defendant will provide medical escorts and, with the claimant's consent, would provide the Greek authorities with her psychiatric reports to enable them to make the appropriate reception arrangements. The present case thus differs from Razgar's case since in that case, in addition to the psychiatric evidence about the effect of removal on Mr Razgar and his particular fears about Germany, there was psychiatric and other evidence of a real risk that he would not receive appropriate treatment if removed to Germany (see [2004] AC 58 at paras. 12 and 13).

Richards J took account of both the risk of self-harm on removal and a real risk that the claimant would not receive appropriate treatment in Germany. The House of Lords, however, appears to focus only the risk of self-harm on removal (see Lord Bingham at para 23 and Lord Carswell at para 73 and 75).

I turn to risk of self-harm on removal. The high water mark of the medical evidence in the claimant's favour is the opinion expressed by Dr Davies in her letter of 7th April. In the present context, I must take the medical evidence as it is. In Razgar, Lord Carswell stated that in the absence of any other medical knowledge, the Secretary of State was obliged, for the purposes of considering the issue of a certificate, to accept the correctness of the opinions expressed by the psychiatrist in that case (paragraph 70). Lord Bingham, at paragraph 12, agreed with Richards J that in the absence of any contrary opinion, the defendant could not discount the professional judgment of the psychiatrist.

Taking the medical evidence before me, there is a single letter stating a strong possibility that the claimant would become actively suicidal or psychotic if deported. But my task is to consider all the material before me and which would be before an adjudicator. In the present case, first, there is no evidence that the claimant had fears, rational or otherwise, of ill-treatment in Greece. Secondly, there is no evidence that she would not receive appropriate treatment for her mental condition in Greece, and the defendant has indicated that arrangements would be put in place from the moment of her arrival. In Razgar there was evidence that Mr Razgar would not receive appropriate treatment for his mental condition in Germany. Thirdly, while Dr Davies states that there is a strong possibility that the claimant would become actively suicidal or psychotic if deported, she does not link this to deportation to Greece and the reference in the letter to Kosovo suggests the opinion was premised on removal to Kosovo. These factors, together with what was said in HY v Secretary of State for the Home Department about the need for caution in respect of opinions based only on statements by the person subject to removal, mean that, without discounting Dr Davis's opinion in any way, I have concluded that on consideration of all the material before me and which would be before an adjudicator, that the answer to the question, whether any interference with an individual's private or family life has consequences of such gravity as potentially to engage the operation of article 8 in this case clearly would, or should be, negative.

In view of my conclusion on this, there is strictly no need for me to consider Lord Bingham's fifth question. Mr Juss submitted that this is one of the exceptional cases in which it cannot be said that legitimate immigration control necessarily means that interference with private or family life is proportionate. He submits that it is only in an exceptional case that one can say that there is suicidal ideation. Sadly, the anxieties and strains of those who wish to remain in his country when the authorities wish to remove them do lead, as the facts of Razgar and, indeed, those of HY show, and it is alleged in this case, to suicidal ideation. I have referred to the fact that in Razgar neither the Secretary of State nor Richards J considered article 8(2). In the present case, the Secretary of State has considered it and has concluded that it is plain that any alleged interference with the claimant's qualified rights under article 8(1) is both proportionate and justified under article 8(2) in the circumstances of her case.

In Razgar, Lord Bingham stated at paragraph 24 in dealing with the fifth question:

In relation to article 8(2), Lord Carswell, after noting that the matter had not received consideration by the Secretary of State or the Judge, said (at paragraph 77):

Do these statements mean that evidence of circumstances, in particular of the risk of suicide, which arguably engage article 8 constitute the exceptional circumstances in which Lord Bingham contemplated that his fifth question might be answered in favour of the claimant? The answer to this question is not entirely clear. Where article 8 is only engaged in cases where removal will lead to a serious deterioration in health, it is nevertheless clear that article 8(2) can justifiably be invoked and there are several examples in the cases of it being done. Is the case of suicide different? I have noted that there are a number of cases in which a risk of suicide has been considered.

I have concluded that the factors which led me in considering whether article 8 was engaged in the present case, in particular the absence of evidence that the claimant had fears, rational or otherwise, of ill-treatment in Greece, and the absence of evidence that she would not receive appropriate treatment for her mental condition in Greece, mean that, had it been necessary to consider article 8(2), the present case is not one of those small minority of exceptional cases in which the interference would arguably not be justified by the needs of immigration control. It is one in which, in the words of Simon Brown LJ in Djali, given the grave problems of asylum over-load facing this country, the decision-maker must inevitably regard the interests of immigration control as the imperative and over-riding factor. For these reasons, this application is dismissed.

When adjourning the hearing on 12th October, Silber J also ordered the claimant's solicitors to serve a witness statement within 14 days, explaining why Dr Davies' reports were not supplied to the defendant or the Treasury solicitors before the hearing and why they should not pay the costs of the adjournment. It was agreed, and with justification, at the hearing to defer this aspect of the case until after my judgment on the substantive issue. I have now given my judgment on the substantive issue. Shall we deal with any consequential issues as a result of the judgment first, and then turn to the issue of the wasted costs order?

MR JUSS: My Lord, I seek permission to appeal to the Court of Appeal. Firstly, my Lord, your Lordship recognises that Dr Sheilagh Davies does refer to the fact that there is a strong possibility of the claimant becoming actively suicidal. Your Lordship has taken the view that in the update letter of 5th October there is a reference there that risks to mental health if deported stand. There is an implication that Dr Sheilagh Davies' understanding is that the deportation is to Kosovo. My Lord, I submit that it is open and very feasible, very likely, that Court of Appeal will take a different view on that. The Court of Appeal can conceivably come to the view that the strong possibility of becoming actively suicidal does indeed refer to the possibility of being deported per se, and given that the Court of Appeal could come to that view, very likely, I submit that there is, on the question of proportionality, room for another view. That, my Lord, is my first point.

Secondly, if your Lordship is right to say that this is a case where article 8(2) has to be considered, then, my Lord, then that means that further review in the superior court should be taken in the Court of Appeal. So, my Lord, the question about how this should be treated, particularly in relation to the point that I noted, the question of being suicidal, is sufficiently different from that in Razgar, and in those circumstances one might take the view that, given that question mark here, one might well benefit from further review.

MR JUSTICE BEATSON: Miss Anderson?

MISS ANDERSON: My Lord, I approach the application for permission to appeal. My learned friend is really referring to new evidence that Dr Davies might give a report which clarifies what she said; that is something that can be put before the Secretary of State. New evidence which does not exist is not evidence for granting permission to appeal.

MR JUSTICE BEATSON: Is his ground not really that I have construed the letter wrongly?

MISS ANDERSON: Without saying it, my Lord, I suppose that is the ground. As long as it is open --

MR JUSTICE BEATSON: It is always awkward. That is the point you have to address, I think, rather than new evidence.

MISS ANDERSON: My submission is, my Lord, that unless it can be said that the construction is irrational, it would be a rare case in which the Court of Appeal would interfere simply on the basis that they formed a different view from the first instance judge. It is not a complete rehearing. It is a review of the judgment below and, in those circumstances, my Lord, it is a matter for the Court of Appeal and my friend can apply to them for permission.

MR JUSTICE BEATSON: What about 8(2)?

MISS ANDERSON: 8(2), my Lord, again my learned friend has not said that you are wrong. In my submission he has not identified any points where it could be said --

MR JUSTICE BEATSON: He is relying on the other limb, which has gone out of my mind for the moment.

MISS ANDERSON: My Lord, this not the only suicide case in the system. It is almost invariably alleged in all the cases. It is not an argument to say simply this is an opportunity to consider 8(2). There will be plenty of those. In my submission, it is for the Court of Appeal to consider whether your Lordship has got it wrong.

MR JUSTICE BEATSON: Yes. I am not going to give permission to appeal. I think it is a matter for the Court of Appeal to decide. On the first point, it is either a new evidence point, or whatever, but it is certainly the case that this letter does not address the consequences of removal to Greece, and so I do not accept that. I do not see as many of these cases as the two of you do, but my experience is that suicide cases, or alleged suicide cases, are increasingly common, so I believe that the Court of Appeal should decide whether it wishes to consider article 8(2), although I have held article 8(2) is not engaged in this case.

MR JUSS: Thank you, my Lord.

MR JUSTICE BEATSON: I am grateful to you for your arguments and submissions?

Is there a form for me to fill in? (Pause).

MISS ANDERSON: My Lord, I have taken instructions as to the costs of the hearing. The form does not specify whether my learned friend is legally aided. However, on this one occasion -- I set no precedent -- we feel that it is not appropriate to ask for costs against the claimant herself for these proceedings. However, there is an issue of wasted costs and the order to show cause was made by Silber J. I do ask for the wasted costs of the last adjourned hearing under part 48.7(4). I ask for them against the solicitors only. One of the considerations whether the section applies, (2) is given a reasonable opportunity to attend. In fact, she had a greater opportunity now because there has been an opportunity to put in witness evidence to deal with the question. (4) is "must specify the amount disallowed". There has been a schedule served.

MR JUSTICE BEATSON: Have I got that?

MISS ANDERSON: My Lord, I can hand up the schedule.

MR JUSTICE BEATSON: I do not believe I have.

MISS ANDERSON: I can hand it up, my Lord. You will see that it is absolutely the bare minimum that the Treasury solicitor is claiming here. There is no preparation for that hearing because the view has been taken, very reasonably, that the --

MR JUSTICE BEATSON: You would have to have done it anyway.

MISS ANDERSON: Although you have to be up to speed --

MR JUSTICE BEATSON: Miss Anderson, your skeleton argument, for example, does not deal with Dr Davies' evidence.

MISS ANDERSON: No. There is a reason for that, my Lord. Did you see that there was correspondence about that? It was a decision that was taken that Silber J --

MR JUSTICE BEATSON: You took a view about the admissibility of the report, did you?

MISS ANDERSON: No, Silber J ordered an amendment of the grounds. So we were waiting for the amended grounds before doing that and the amended grounds never arrived.

MR JUSTICE BEATSON: I observe it very likely that the skeleton argument was addressed to a horse that was not in town.

MISS ANDERSON: It was thought that that horse would have turned up.

MR JUSTICE BEATSON: Anyway --

MISS ANDERSON: So it is the bare minimum, my Lord: my attendance at the last hearing and the attendance of those behind me, and I think that is it.

MR JUSTICE BEATSON: Quite a lot of travel and waiting time. Travel from where?

MISS ANDERSON: We had to have the client department here as well.

MR JUSTICE BEATSON: Of course, yes.

MISS ANDERSON: So, my Lord, as I say, it has been kept to a bare minimum. It is a reasonable amount. I would say that it was unreasonable not to serve the material on the Secretary of State before the day before the hearing, effectively, the Friday before the hearing on the Monday, if the evidence has been in possession since July. That was unreasonable conduct and, I would submit, negligent conduct. It should be looked at in an untechnical way. Failure to act with the competence reasonably expected of competent members of the legal profession.

MR JUSTICE BEATSON: So the first two.

MISS ANDERSON: Not improper conduct, but it was unreasonable, and in my submission, taking the untechnical approach of negligence, it was incompetent.

MR JUSTICE BEATSON: Mr Juss?

MR JUSS: My Lord, as I understand it, the point in issue here is really the point of the two documents served; essentially the letters of Dr Sheilagh Davies. My Lord, I can only say what I have attempted to say throughout these proceedings, which is this. Those instructing me have done their utmost to forward those documents as and when they have got them. The plain fact was at the time when this matter was first advanced, the only medical report before them was that of Dr Steadman, although, as is now clear, there were earlier statements --

MR JUSTICE BEATSON: There is the first letter.

MR JUSS: That is right. In that scenario, what specialists in this field do when they see that produced before them, an earlier report from Dr Sheilagh Davies which did not quote that which on permission has been granted, do they simply choose to not to disclose them, or do they forward them, as they ought --

MR JUSTICE BEATSON: No, they clearly ought have forwarded them.

MR JUSS: That is what they have done.

MR JUSTICE BEATSON: How did they forward them? Let us take that first.

MR JUSS: My Lord, what we have is simply an affidavit from Mr Singh on page 7 --

MR JUSTICE BEATSON: "I attempted to send the document by fax but the fax number was constantly engaged." Then they decided to send them in the DX. The interesting thing is that in this bundle there is a letter dated 13th October from those instructing you to the Treasury solicitor. My copy of it has some facsimile transmission times on page 2. There is evidence here that your instructing solicitor said he attempted to send them, but unlike his practice on 13th, when we see that there was a facsimile report that the transmission was all right, and you say that was because the phone was engaged and therefore the thing will not give a report at all.

MR JUSS: What we would say is this. Page 7 of the document confirms that page 3, repeated attempts were being made to send by fax those documents which have been served in this case. We do, in fact, have, and I can produce, a fax print- out, identifying that we attempted to fax those through.

MISS ANDERSON: I have not seen that.

MR JUSTICE BEATSON: There is correspondence, the letter of 11th November to those instructing you. "The witness statement refers to inability successfully to fax a copy of this further letter, however the witness statement has failed to attach any transmission sheets of any unsuccessful attempts at fax transmission.

MR JUSS: There is a transmission sheet.

MR JUSTICE BEATSON: Yes, it has not been served. It has not been served, notwithstanding the complaint of the Treasury solicitor on 11th November. It has not been served. Here we are on Friday, 3rd December.

MR JUSS: My Lord, speaking for myself, I must say that this was the first opportunity given to me on the date of the substantive hearing.

MR JUSTICE BEATSON: That is not in issue. It is not proposed that a costs order be made against you, Mr Juss, but against your instructing solicitors. Unless your instructing solicitors did not get the fax sent on 11th November, they have known this was the point at issue.

MR JUSS: If I may put it this way. As far as the question of wasted costs of the last hearing are concerned, it does show that there is a very reasonable explanation for why this has happened. The fault lies not with the solicitors, because the solicitors have attempted to forward documents as they came into their possession.

MR JUSTICE BEATSON: Well, you say that. The solicitors attempted to forward documents as they came into their possession?

MR JUSS: Indeed, my Lord.

MR JUSTICE BEATSON: Where does it say in the affidavit when the document came into Mr Singh's possession?

MR JUSS: It does not say that.

MR JUSTICE BEATSON: Is that just another bit of sloppiness?

MR JUSS: What we can say is that crucial point was that this documentation came into the possession of the present solicitors after the hearing of 2nd July --

MR JUSTICE BEATSON: I see. I accept that and there is no issue. Nobody is saying that document was not with your instructing solicitors on 2nd July. If it was, we would all be breathless that the point which was at the heart of your case was not before you. I have wondered why the letter dated 7th, the day before this judicial review proceedings were instituted, probably a letter written in response to a request of 5th October, was not before the court at the July hearing. It is one of those things that one cannot get to the bottom of, but I find it very odd that that letter was not available on 2nd July. It may not have been available then, but it seems to me there is a big question mark as to when this letter first reached those instructing you. What happened? Was it simply lost in the office? Because, of course, the letter of 5th October encloses a copy of 7th.

MR JUSS: My Lord, what is clear is this: that the only expert's report on which this case got off the ground was that of Dr Steadman. All the other documents, including the letter of 13th December from Dr Sheilagh Davies, were not there at all. What I am submitting, my Lord, is that these documents came to light subsequently. Your Lordship has averted you would be pretty much illiterate not to understand that one document is stronger than the other. Dr Steadman's report was the least of the lot.

MR JUSTICE BEATSON: Actually, Dr Davies' first report was the least strong, but I will not go into that. But what you are saying is that you resist a wasted costs order; there may have been sloppiness, certainly in the response to show cause, but not unreasonableness or negligence.

MR JUSS: One of the ironies, if I may say so, that one expects courts to be super-efficient, but reality is that it is not perfect clockwork and things do not run like clockwork. The crucial question, my Lord, is simply this. What happened, was that, of course, a waste of costs on that day? Was the fault at the door of the solicitors who instruct me? What I say is that plainly it was not because when the document came into their hands, either they say, "We have got permission, we are not going to put this in", or they say, "We have to, and have to be seen to be doing the best for our client. This is material which ought to be before the court but ought to be there on behalf of those we represent." That is what they have done, my Lord, and on that score there is no culpability which a wasted costs order would be seen to penalise. We have got this letter. Your Lordship has pointed out that in the second paragraph, it seems to be saying, "We attach a copy of our letter of 5th October." What your Lordship and my learned friend seem to be saying is that perhaps there is a print-out. We have that now.

MR JUSTICE BEATSON: I cannot really consider that until the defendant looks at it and makes submissions on it.

MR JUSS: My Lord, may I ask that it does.

MISS ANDERSON: Firstly, my Lord, the burden is on my learned friend to show cause and that is the whole point of giving notice of having a witness statement. Secondly, even if this was correct, one can pick up the phone and ring the solicitor and say, "I am having trouble getting through on your fax", or ring the Treasury solicitor and say, "I cannot get through to you, but I have got it through to the Secretary of State." Of course, it is meant to be served on the Secretary of State because he is the person who is considering it in order to deal with it.

MR JUSTICE BEATSON: I really just wanted you to look at that document and see if you have anything to say on that.

MISS ANDERSON: What is highlighted is a successful transmission on 25th October at 4.12 pm. I am not sure how that keys into what is being suggested anyway.

MR JUSTICE BEATSON: Perhaps I should have a look at it.

MISS ANDERSON: That is the only thing that is highlighted. (Handed).

MR JUSTICE BEATSON: These fax transmission sheets relate to dates between 22nd and 25th October. The issue in this case is why this was not faxed on 8th October.

MR JUSS: My Lord, as your Lordship will be aware, fax machines do not record failures to transmit a fax.

MISS ANDERSON: My Lord, they do.

MR JUSTICE BEATSON: They do record failures. What they do not record is engaged numbers, but, Mr Juss, I am deeply concerned. I was told that this would show you have got the fax transmission sheets and they would show that this was sent. "It was sloppy not to have the Treasury solicitors have them, but we have got them now. Just look at them, my Lord, and you will see that it was sloppy, not negligent." This does not even relate to the relevant week. So I will pass it back. It is not of assistance. (Handed).

I am going to make the wasted costs order. I am satisfied that in not communicating expeditiously with the defendant or the defendant's instructing solicitor in relation to Dr Davies' letters of 7th April and 5th October when they were received and in giving no explanation of when the letter of 7th April was first in the possession of the claimant's solicitors, Messrs Singh and Co, acted unreasonably. They also acted unreasonably in not explaining when the letters dated 7th April and 5th October arrived. The explanation for what happened, that the claimant's solicitor, sent the letter by DX on 8th October, a Friday, amounted to unreasonable conduct within the concept as applied under CPR48.7. There was also negligence in the conduct of this matter and, indeed, in the way the response to the order of Silber J was handled. At the hearing, Mr Juss stated in relation to the defendant's objection that there was no evidence of unsuccessful attempts at fax transmission, referred to in Mr Singh's affidavit, and that there was now evidence. On examination, that evidence related to a period starting on 22nd October, some two weeks after the relevant time. I therefore make a wasted costs order in the sum of £800 in favour of the defendant.