AT v Secretary of State for the Home Department

This is a matter that has been listed for the substantive hearing of the judicial review application on behalf of AT, FF and BT against the Secretary of State for the Home Department with respect to the lawfulness of her decisions, in particular with respect to the detention and removal of the first claimant, AT.

Anonymity of the claimants was ordered on an interim basis by McGowan J on 9th February 2017. That anonymity continues by virtue of a further order of Helen Mountfield QC sitting as a deputy judge of the High Court. That interim order now continues until any further order is made.

There is no need at this time for me to go into any details with respect to the history of the substantive application. I am mindful of the fact that this case has been given an initial listing of a day and a half and that one half of that time estimate has now already effectively been taken up with these arguments.

The history of this interim application can be summarised as follows. The claimant initially sent, through those representing him, the Public Law Project, a very detailed letter of claim to the Secretary of State on 29th January 2017. There was no response to that detailed letter before claim.

On 2nd February 2017 there was a chasing letter sent on behalf of the claimant requesting a response from the Secretary of State. No response was provided.

Legal aid was applied for on behalf of the claimants. On 9th February 2017 an unsealed claim form was sent to the Secretary of State together with an application for a stay pending resolution of the issue as to whether public funding would be made available. That application for a stay was refused by McGowan J on 9th February 2017, the date on which she made the anonymity order. That was the same date on which the claim was issued. In her reasons for the refusal of the stay, McGowen J. commented that it was not right to delay the resolution of the issues in this case for some indefinite period.

The claimant then requested an extension of time from the defendant for the serving of the claimant's claim form, which necessitated an extension of time for the filing of the defendant's acknowledgment of service. There was no response to that request made on 13th February 2017.

On 16th February 2017 the sealed claim form was served upon the Secretary of State and a further request made for a stay until 27th March 2017. There was no response to that letter. Legal aid was granted on 1st March 2017.

On 8th March 2017, an extension of time was suggested by the claimant both for the filing of detailed grounds of claim, the amended bundle and the evidence. The Secretary of State agreed to that extension of time on the basis that the defendant would file and serve her acknowledgment of service within 21 days of the detailed grounds of claim being filed and served by the claimant. Until that agreement made in March 2017, the claimants’ advisors had been entirely proactive and the Secretary of State was taking no steps.

On 14th March 2017 there was a consent order approved by the court so that the defendant had until, in principle, 7th April 2017 to file the acknowledgment of service. The Secretary of State did not file an acknowledgment of service and did not app ly for an extension of time for acknowledgment of service.

The claimant contacted the defendant again, requesting that the acknowledgment of service be served by no later than 21st April (that would be a further 14 days beyond the original consent order) or an application would be made for a judge to make a determination with respect to permission to judicially review the Secretary of State’s decisions without receipt of the defendant's acknowledgment of service. There was no response to that communication. In due course, on 21st April 2017, the claimant, through his representatives, asked for such a decision to be made.

On 7th June 2017 Helen Mountfield QC, sitting as a Deputy, gave permission to judicially review the Secretary of State, noting within her order that she was forming her views on arguability on the basis of the claim form alone, that the consent order had been made on 14th March 2017 giving the defendant an extension of time for the acknowledgment of service until 21 days after the claimant filed grounds of claim on 17th March 2017. She noted that no acknowledgment of service had been filed to date.

Directions were given in the standard form, which included that the defendant had 35 days from the service of the order to file and serve those detailed grounds.

On 13th July 2017, the Secretary of State applied for an extension of time for a further 35 days to file detailed grounds of defence. Those grounds ought to have been filed and served by 14th July 2017. The request was that that extension continue until 18th August 2017. That extension was granted and the defendant was given until 18th August 2017 to file detailed grounds. Had that deadline of 18th August 2017 been complied with, the claimants would have had in the region of seven weeks to consider what was being said by the respondent.

Master Gidden in his order observed that:

The extension was not complied with and there was no ground of defence or evidence and no application for a further extension of time from the Secretary of State.

On 23rd August 2017, the claimant's representatives wrote to ask the Secretary of State whether she intended to participate in the hearing listed to take place today and tomorrow, 4th and 5th October 2017, and if so when she intended to serve and file her detailed grounds and any evidence.

The claimant wrote again to the defendant on 30th August 2017, again alerting the defendant to the timetable and the need then for a skeleton argument to be prepared and for the bundle to be compiled, but there was no response either to the letter of 23rd August or 30th August.

In due course, the claimant filed and served a skeleton argument and trial bundle, asking for the time estimate to be reduced to a day in light of the fact that the Secretary of State was not engaging in the proceedings at all. That, until late yesterday afternoon, was the position so far as the claimant understood the situation and so far as this court understood the position. Save for agreeing an extension of time in March 2017 and obtaining the extension of time until 18th August 2017, the Secretary of State had failed to take any interest in this case.

At approximately 3.30 p.m., the day before the listed hearing, the detailed grounds of defence were filed at the court. Ms Barnes, Counsel for the Secretary of State, has shown me today an application that was made yesterday, but not issued until this morning. This is an application for relief from sanction so as to enable the defendant to be able to take part in this hearing.

The Civil Procedure Rules are clear. Rule 54.9 provides that where a person served with a claim form has failed to file an acknowledgment of service in accordance with rule 54.8, he may not take part in the hearing to decide whether permission should be given unless the court allows him to do so; but, provided he complies with rule 54.14 or any other direction of the court regarding the filing and service of detailed grounds for contesting the claim he may take part in the hearing of the judicial review.

Rule 54.14 provides that a defendant and any other person served with a claim form who wishes to contest the claim, or support it on additional grounds, must file and serve detailed grounds for contesting the claim or supporting it on additional grounds and any written evidence within 35 days after service of the order giving permission. In this case, as I have already set out by the chronology, there was an extension of time for the defendant to comply with rule 54.14 to 18th August 2017.

The defendant attends today by counsel to seek an order of the court to allow the Secretary of State, despite the failure to comply with the rules and the failure to comply with the order of the court, to take part in these judicial review proceedings. The application was only made on the morning of the hearing and consequently was not an application formally listed before me.

Counsel on behalf of the claimant has submitted that it is too late for the defendant to be making that application and that it should not be heard at all. She submits that such a late issued application interferes with justice in that the hearing of the substantive application for judicial review has been put back by reason of dealing with the matters raised.

I accept the submissions made on behalf of the claimant that the failure to issue the application for relief until immediately before the hearing this morning does interfere with the good administration of justice as it was simply not possible for the substantive hearing to commence on time if the application for relief is dealt with. Miss Barnes, for the Secretary of State, does not seek to contend that there is any reason, and certainly no good reason, for dealing with the application for relief so late. Further she properly does not seek to suggest that there is any good reason for the failure to provide an acknowledgment of service or detailed grounds for contesting the claim.

Nonetheless, I have decided that it is in the interests of justice and in accordance with the overriding objective, taking into account the delay being caused to the hearing of this matter, that the Secretary of State should be able to put forward all the grounds upon which she would seek to argue that, regardless of the egregious failure to comply with court rules and orders of the court, she should nonetheless be heard in this substantive judicial review application. It is, of course, understood that the Secretary of State has a vast burden of cases and that there are constraints on resources. The extension of time until 18th August 2017 is an example of the indulgence shown to the Secretary of State to enable her to take part in the process within the burdens and constraints of her position. However, the rules are very clear. As is known by all practitioners and judges, there has been a change in the attitude taken by the courts with regard to parties' failures to comply with court orders and rules of court. That change has come about by virtue of the Jackson reforms and the new Civil Procedure Rules, particularly in CPR 3.9.

While these matters are well-known, it is important always to return to the decisions of the Court of Appeal and in particular the then Master of the Rolls, Lord Dyson, with respect to how applications for relief from sanction should be dealt with, in particular in the cases of both Mitchell and Denton; Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and thereafter Denton v TH White Ltd [2014] EWCA Civ 906.

In Mitchell, the Court of Appeal endorsed the approach that had been set out by Lord Dyson in one of the many lectures given with respect to the Jackson reforms where he said that:

The Secretary of State has had numerous opportunities to comply with the requirement to provide detailed grounds of defence setting out her opposition to this application for judicial review. She has failed to do so. She not only failed to provide those detailed grounds timeously, but she has failed to provide any explanation as to what has caused that failure. That, it seems to me, is entirely inappropriate behaviour from any litigant.

The Court understands the great pressures that are placed upon public bodies dealing with the volume of litigation brought against them. That, however, gives no excuse for behaving in a way which appears to be somewhat highhanded in failing to appreciate the necessity to comply with rules and orders of the court.

Counsel for the Secretary of State has said that the claimants could apply for an adjournment to deal with the new matters raised by the Secretary of State in her detailed defence and that the Secretary of State could not properly oppose such an adjournment nor could she oppose an order for costs being made against her. As has been said by Miss Kilroy, on behalf of the claimants, that puts her in an utterly invidious position. What the claimants are being asked to do, effectively, is to either give up their hearing today in order to have a fair hearing in the future or take their chances today, without having a proper opportunity to deal with matters that the Secretary of State now wishes to put before the court, with the consequential danger that the claimants do not receive a fair hearing.

That strikes right at the fair justice system that all parties, regardless of status, are entitled to have access to. The claimants are entitled to a fair hearing. If the Secretary of State is allowed to raise new issues at this late stage, the claimants potentially do not get that fair hearing. However, the claimants do not want an adjournment. The first claimant has been removed to the Gambia, he alleges unlawfully, and he wants his application heard. All three claimants, including the first claimant’s very young son, contend that his removal to the Gambia is an ongoing interference with their Article 8 rights. There is plainly an urgency in the matter.

In Mitchell it is set out that there are a series of stages that the court must go through in determining whether there should be relief from sanction. The first stage is whether or not the delay is a serious one. The Secretary of State does not seek to suggest that this is anything but a serious and significant delay.

In addition to accepting that the delay in this case is serious, the Secretary of State does not seek to suggest that there is any good reason for that delay. In the application that was issued today, she has set out as evidence the various matters that she says have given rise to this delay. It is accepted in that evidence that counsel first provided advice on this matter on 20th July 2017, but that there were then discussions with regard to preparation of a draft supplementary decision letter. It is submitted that the Secretary of State continued to consider her position for some two months through to 18th September 2017.

It is then said that there were also delays by reason of the unavailability of legal advisers. The draft of the detailed grounds of response was, I am told, provided by the end of August 2017. Further legal advice was provided in the middle of September. The revised draft of the detailed grounds, according to the evidence, was provided on 25th September 2017. The grounds were further amended and the final draft was provided on 2nd October 2017. None of this was known to the claimants. So far as they were concerned the Secretary of State was simply not engaging in the process, despite having sought and obtained an extension of time until 18th August 2017. It is difficult to understand, other than a shortage of resources, as to why the Secretary of State was not working to that court imposed deadline. No further requests were made for further extensions of time. Sensibly, as is properly accepted by counsel for the Secretary of State, there is no good reason for this serious and significant delay.

It being accepted that there was a serious and significant breach of the rules and court orders and that there is no good reason for that breach, I have to consider all the circumstances of the case. See Denton.

The Secretary of State relies on the fact that it would be useful for the court to be able to hear from the Secretary of State with respect to her position, to hear the submissions she would like to make, and to hear her explanation of the documents that have recently been disclosed.

With respect to the late disclosure, I have been told that the documents disclosed are not complete. Disclosure is very late and no explanation has been given for that late disclosure. Now the documents, albeit incomplete, have been disclosed the claimants can make whatever use they wish to make of that documentation. Plainly, insofar as those documents undermine or contradict points that the claimants otherwise may have made, those points can no longer be made. Further, submissions cannot be made that are not supported by the documentation. However, it does not need the Secretary of State to deal with the documentation or explain the documentation to me. I will read it and the claimants’ counsel will draw relevant parts to my attention.

As the claimants' counsel has submitted, it is a given that the court would be assisted by the defendant being at court and by her putting forward her own representations with respect to this matter. The adversarial system aims at ensuring that a court is able, insofar as it is possible, to get to the truth of matters. The defendant has, by her failure to provide an acknowledgment of service or detailed grounds until late the day before the hearing, excluded herself from being able to make such representations. It is for me to determine whether, in all the circumstances, it is appropriate to hear her nonetheless.

In R (o.a.o. Ademiluyi) –v- SSHD [2017] EWHC 935 (Admin) Mr Michael Fordham QC, sitting as a Deputy Judge of the High Court, gave the Secretary of State permission to make representations. Mr Fordham QC found that he was:

“satisfied that this is a case in which it is in the interests of justice and the public interest, as well as consistent with the overriding objective, for me to have been prepared to allow the Secretary of State orally to assist me in relation to the contemporaneous documents; to assist me as to the implications of those documents; to bring to my attention any relevant passages in any relevant authorities; and to address me on the question of the lawfulness of the detention in this case.

In reaching that conclusion, I had regard to CPR 54.9(2), which deals with this situation and provides:"(2) Where that person takes part in the hearing of the judicial review, the court may take his failure to file an acknowledgment of service into account when deciding what order to make about costs.”

In Ademiluyi the Secretary of State was late in filing the acknowledgment of service and was late in filing detailed grounds, but decided not to apply for permission pursuant to an order of Cranston J. to apply for permission to rely upon the detailed grounds of de fence that had been served late:

“Possibly, they appreciated that it would not be possible to satisfy the court in relation to those principles. I know not, and do not speculate. But the upshot was that they did not have the court's permission for the extension of time sought for the defence that had been filed on 26 October 2016. The course they took was to withdraw reliance on that pleading and instead to seek to rely on the summary grounds.”

The court has to consider the circumstances and effect of the breach in every case. The situation in Ademiluyi was different to the situation here. While outside the time limits prescribed by the rules, an acknowledgment of service was filed and served by the Secretary of State in Ademiluyi. There was no acknowledgment of service that the Secretary of State could rely upon in this case. Further, in this case the detailed grounds were not only late but they were filed and served almost as late as it was possible to do so – namely, late on the day before the two-day hearing was listed to commence. While in Ademiluyi the Secretary of State had waited for six months before acting on Counsel’s advice, there was still time for an application to be considered before the hearing. That was not the situation here where the application for permission to be heard was only issued immediately before the hearing and the application heard now, when the substantive application should be being heard. The claimant was not given any prior warning of the points being raised in those detailed grounds and without an earlier acknowledgment of service the claimants have been prevented from knowing in advance the contentions being raised by the Secretary of State.

The court has to consider whether by reason of the breach either the court or the parties have been prevented from conducting litigation efficiently. That is a factor which weighs in favour of refusing relief.

The court also has to consider the importance of parties complying with rules, Practice Directions and orders. In Denton, Lord Dyson makes it clear that:

The failure to file the detailed grounds of defence before late afternoon the day before the hearing in this case is both a serious and significant breach. There has been no good reason put forward on behalf of the Secretary of State for her failures to file the detailed grounds of defence any sooner. Looking at all the circumstances of this case, in addition to the lack of explanation for the serious and significant breach, the Secretary of State failed to make an application for relief promptly, indeed waiting until this morning to make that application.

Both the Court and the claimants are being put in an invidious position by reason of the behaviour of the Secretary of State failing to deal with matters timeously. As I have already set out, the prejudice to the claimants is clear and obvious. Either the claimants press on and take the risk that they are unable to deal with a point now raised by the Secretary of State in her detailed grounds without having the opportunity to consider or research the point prior to the hearing; or the claimants seek and obtain an adjournment of the hearing in order to obtain sufficient time to deal with the points in the detailed grounds but thereby delaying the hearing and potentially delaying the return of the first claimant from the Gambia and halting the alleged interference with the Article 8 rights of all three claimants.

The choice for the court is to either seek to evaluate the legality of the Secretary of State's actions hearing only from one side, or to give permission to the Secretary of State so that her Counsel can assist the court:

“It may well be that a judicial review court is likely in most cases to feel that it is in an invidious position and to be extremely reluctant to decide public law issues, knowingly shutting out assistance that could be provided by the executive. Apart from anything else, that undermines the court's ability get the right answer. On the other hand, it cannot be the case that the Secretary of State can hold a gun to the head of the court, so far as default with the rules is concerned, knowing that there can be no sanction which goes to the way in which the legal merits of the case are resolved by the court.” Per Michael Fordham QC in Ademuyli.

I referred in the course of submissions to the fact that behaving in this way can be considered arrogant. Not only has there been a failing to comply with the rules of court and a failure to comply with the express orders of the court, but these failures have taken place in the context of the claimants taking active steps to obtain engagement from the defendant. It is surprising, given the level of default, that the Secretary of State has not been in a position to put forward an explanation as to why she has failed to comply with the orders. The Secretary of State cannot be allowed to “hold a gun to the head of the court” and rely upon the fact that the court would, of course, like to hear her arguments. By reason of the manner in which the Secretary of State has handled this case, there would be very real prejudice to the claimants if the Secretary of State were now allowed to argue her points at this stage.

As has been made abundantly clear in R (Hysaj) v Secretary of State for the Home Department and Others [2014] EWCA Civ 1633, the Secretary of State is not, and nor is any public official or any public body, placed in any unique position by reason of the fact that these are disputes about decisions made by public bodies.

“Although many public law cases raise matters of great public interest, that is not invariably the case and indeed many private law cases raise questions of great significance to the public as a whole. Quite rightly, in my view, the Rule Committee has not made special provision for appeals from the Administrative Court to the Court of Appeal and it would be quite wrong for us to construct a special regime for such appeals outside the rules. In so far as there is a suggestion to the contrary in R (Mohammadi) v Secretary of State for the Home Department [2014] EWHC 2251(Admin) I respectfully disagree with it. Nonetheless, I would accept that the importance of the issues to the public at large is a factor that the court can properly take into account when it comes at stage three of the decision- making process to evaluate all the circumstances of the case.” (per Moore-Bick LJ: Hyaji)

The Secretary of State is obliged to comply with court rules and court orders and she has failed to do so in this case. While this case is obviously of extraordinary importance to the individual claimants, it is not a case which raises issues of general public importance and is not a case where, in all the circumstances, it is appropriate for relief from sanction to be granted:

“I am unable to accept that the court can construct a special rule for public authorities. I am well aware that the resources of many public authorities are stretched to breaking point, but in my view they have a responsibility to adhere to the rules just as much as any other litigants. In Mitchell the court stated clearly that, in the case of a solicitor, having too much work will rarely be a good reason for failing to comply with the rules and in my view the court should not apply a different standard to public bodies.” (per Moore-Bick LJ: Hyaji)

In all the circumstances, I am refusing this application. The claimants can proceed with their application for judicial review today as they as set out in their documentation.

Having made the ruling I have with regard to the conduct of the Secretary of State in this matter, I am asked to make an order for costs and to make that order on the indemnity basis in favour of the claimants.

So far as an order for costs is concerned, there is no argument with regard to that. The defendant through her counsel accepts that such an order should be made. The issue is whether this is a case which, by reason of the conduct of the Secretary of State, takes it out of the norm such that costs are to be on the indemnity basis.

There is, of course, a high test to be fulfilled by a party seeking costs on the indemnity basis. Behaviour of parties is such that the costs sanction itself is normally sufficient to mark the disapproval of the court and consequently why the court has to consider the behaviour is such that it takes it out of the norm.

In this case, as I have already said in my ruling, the application for relief was not made until yesterday and, indeed, issued this morning. So far as the claimants and the court was concerned, the defendant was not taking any part in these proceedings, having not served an acknowledgment of service, nor having provided detailed grounds of defence despite the correspondence and the various orders made by the court giving the Secretary of State additional time to comply with the rules.

The claimant quite rightly points out that by reason of the lateness of the application, the claimant's representatives have been taken away from preparing for the substantive hearing today and their efforts have been diverted into opposing this matter. I have received this morning two notes from counsel dealing with the matters and further bundle of authorities dealing with the points raised by the Secretary of State. All of that will have had to have been done in short order and quite plainly will have diverted the claimants' representatives away from the central matters that they have to deal with.

In those circumstances, whilst I have considered the matter carefully through the course of my ruling, I am of the view that the Secretary of State's behaviour in this case has taken it out of the norm such that it is appropriate for that costs order to be made on the indemnity basis.