An important recent case slipped under my radar last year, mainly because it has not been publicly reported on one of the publicly accessible case law repositories like BAILII. The case is R (on the application of Jasbir Singh) v Secretary of State for the Home Department [2013] EWHC 2873 (Admin) and it addresses the ongoing problems of delays and routine breaches of the Civil Procedure Rules by the Home Office in judicial review claims. It also has important implications on whether to ask for expedited consideration.

If the judgment becomes publicly available I will post a proper link [UPDATE: here you go], but for now I’m stuck with quoting parts of the judgment. It is on Westlaw for those with access.

Rising tide of claims

The history to the case is that the Home Office claims, with no credibility, to have been caught unaware by an increase in immigration judicial reviews.

Mr Daniel Hobbs, the Director of UK Visas & Immigration with overall management responsibility for the litigation caseworking and appeals operations for the Secretary of State, has sought to explain, if not excuse, the delays. There has been a rapid and unprecedented rise in challenges to asylum and immigration decisions made by the Secretary of State. The number of judicial reviews received, he says, was 69% higher in July 2013 than July 2012. The number of pre-action protocol letters has more than doubled; over 2,500 were received in July 2013 alone.

Desperate families with no right of appeal will not simply give up and dissolve themselves, as I’ve written before. My colleague, Navi Ahluwalia, was for the claimants in this case and argued ‘with force’ that

the Secretary of State could – and, indeed, should — have anticipated the increases in the number of claims, many of which result from Government policies for which she is responsible.

In any event, the consequence is that the Government lawyers, the Treasury Solicitors, have been unable to get instructions on what to do in individual cases and have had to resort to asking the court to extend time to file replies to claims. This has sometimes occurred multiple times. Belatedly, though, new staff were being recruited and other measures put in place to improve response times.

By the by, apparently 10% of cases are granted permission on the papers and of the refused cases that are renewed for an oral hearing a further 30% are granted permission.

Semi-automatic extensions of time for Secretary of State

Hickinbottom J makes clear his sympathy for the terrible plight of the Secretary of State, beset by this “tide of claims”. He makes noises about how unacceptable it all is. When it comes down to it, though…

Nevertheless, certainly in the period whilst the benefits of the positive measures that are being taken are achieved and assessed, in my view, unless a claimant identifies some good reason why such an extension would be particularly prejudicial, the first application in any claim for an extension of time of up to three weeks need not be supported by any detailed evidence or grounds, and such an application should be treated generously by the court.

Essentially, what is being said is that the Secretary of State will be granted an automatic doubling of time to file an acknowledgement of service if the Secretary of State asks for it. This is indeed what is happening in practice at the moment.

Notably the period in question was to the end of 2013 so this arguably no longer continues to apply.

Further extensions still possible

After the initial extension of time to 42 days, further applications for extensions can still be made:

However, subsequent applications must be supported by a full explanation for the delay in compliance and a firm promise to the court as to when the acknowledgement of service and summary grounds will be filed. Repeat applications with barely aspirational dates, such as have been made in the past, are to be deprecated. On second and subsequent applications, the court should scrutinise the reasons for the delay rigorously; and the Secretary of State should be prepared for such applications to fail unless she has produced compelling reasons specific to the case as to why further time is needed.

These later applications for extensions of time will need to give reasons, unlike the first application.

Sanctions against Secretary of State

In terms of sanctions, it seems there are none to be imposed for the first failure to comply with the CPR but costs sanctions, even ‘severe’ ones, can be imposed later:

The court must remain in control of the management of each case, and should not hesitate to impose sanctions on the Secretary of State, including costs sanctions, if good reason for delay is not made out on second or subsequent applications. Where the time and effort of parties and the court are wasted because of a failure on the Secretary of State’s part to comply with a reasonable procedural timetable, then severe sanctions can be expected. In this, of course the court must be even-handed. Whilst the cases before me now concern defaults on the part of the defendant Secretary of State, the same principles apply to claimants. Although its manifestation may be different, the spirit of the Jackson reforms apply to public law cases as much as to private law claims.

In one of the cases Hickinbottom J grants a further 14 days to file an acknowledgement of service in default of which the Secretary of State would be barred from contesting the damages claim.

Where does this leave us?

The most important practical point to note is that if a claimant needs consideration within six weeks of making a claim, the claimant will need to ask for urgent consideration using Form T483 (assuming it is made in the Upper Tribunal). Otherwise an application for an extension of time will more or less automatically be granted to the Home Office on request.

The contrast between the judicial understanding shown in this case to the Secretary of State and her lawyers presents something of a contrast with the suggestion in Hamid that under-resourced claimants making last minute applications for injunctions are acting tactically and as an abuse of process.

I’m sure that little misunderstanding is all behind us now, though, and that we can now expect similar judicial sympathy for the plight of downright poor or legally aided claimants and their lawyers, struggling against the bureaucratic disaster area of the Legal Aid Agency for fees that have just been slashed to probably business-unsustainable levels. I’m also sure that claimant lawyers can expect the judicial thanks extended to Counsel for the Secretary of State at the end of this case if we need to explain the resources issues behind non-compliance with the rules.