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

PRESIDENT OF THE QUEEN'S BENCH DIVISION: There are before us today three applications. In two of them it has not been possible for us to reach a conclusion, partly because evidence will be required from the Home Office, and partly because in the case of Mr Rehman we shall require the attendance of counsel who advised that the relevant court forms should not be completed; and in the case of Njoroge we require further written evidence from the counsel concerned as to why he did not deal in writing with disclosure and why he considered there was any proper basis to make the application, bearing in mind that his client had not appealed from the First-tier Tribunal.

In the one case we have had to deal with, we wish to commend counsel and those instructed on his behalf for the very frank and candid way they have explained two matters: first how an application was made to the out-of-hours judge when the claim had first been filed at 4.30 pm on the date of the departure of the charter flight; and second why they made that application without waiting for the decision of the judge who was on duty during the day.

We have been told by counsel that he did not know that this court always deals with applications submitted within court hours through the judge who is dealing with them in court hours. We wish to correct that misapprehension, because if it is not within the knowledge of counsel as experienced as he, it must be corrected. If the solicitors have not heard, they must wait. The court cannot be expected, if an application is filed as late as it was in this case, to respond immediately, but the solicitors must wait for that response before applying to the out-of-hours judge.

In the present case the explanation given for everything being done at the last moment is one where those concerned, following counsel's clear and cogent advice, did try to satisfy the obligations of disclosure. It is deeply regrettable that because of the way in which that firm was organised and the commitments of counsel that the application was made late. We take this to be one of those rare occasions where something has gone wrong and we propose to take no further action. The other two matters we will deal with as soon as convenient.