In the case of R (on the application of SN) v Secretary of State for the Home Department (striking out – principles) IJR [2015] UKUT 227(IAC) the President of the Upper Tribunal Immigration and Asylum Chamber not only strikes out the applicant’s judicial review claim but also goes on to make a wasted costs order against both the solicitors and counsel involved in the case. Counsel is not identified but the solicitors are identified in the judgment as CK Law Solicitors.

IMPORTANT UPDATE: CORRECTION TO NAME OF SOLICITORS FIRM. The original version of the judgment that was first published named a completely different firm, CK Solicitors but that has now been corrected both on the tribunal website and on BAILII. CK Solicitors had nothing to do with the case. One would have thought that the tribunal would take more care when publishing such a critical judgment. Free Movement, relying on the accuracy of the published judgment, had named CK Solicitors in the original version of this blog post and unreservedly apologises for the upset this caused.

The judgment makes painful reading and is clearly intended as a warning to others involved in judicial review litigation in the Upper Tribunal. The headnote sets out the general principles to be applied regarding striking out:

(i) Rule 7(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 empowers the Upper Tribunal to take such action as it considers just, which may include striking out a party’s case under rule 8, where there has been a failure to comply with a requirement of the rules, a practice direction or a tribunal direction.

(ii) Under rule 8 proceedings are automatically struck out in the event of failure to comply with an order or direction which specifies that non-compliance will attract this sanction, viz an “unless” order. In other cases the power to strike out is discretionary.

(iii) In considering whether to exercise its discretionary strike out power under rule 8, the main factors which the Upper Tribunal will weigh are the interests of the administration of justice; whether there has been a prompt application for relief; whether the failure was intentional; whether there is a good explanation for the failure; the number and importance of multiple failures; whether the failure was caused by the party or his legal representative; whether the trial date will be jeopardised by the grant of relief; the effect on every party of the relevant failure; and the effect on every party of granting relief. Further, the interests of the administration of justice will be weighed and applied.

(iv) In addition, the Tribunal will apply the following principles: public authorities and private litigants are to be treated alike; excessive work burdens will rarely excuse a defaulting solicitor; and the mere factor of a party being unrepresented does not constitute good reason. In asylum and humanitarian protection claims, particular care must be taken to ensure that appeals are not frustrated by a failure on the part of a party’s legal representative to comply with time limits.

(v) In considering the exercise of its discretionary strike out power under rule 8, the Tribunal will be mindful of the draconian nature of such orders and will take into account the availability of any other appropriate and adequate sanction such as a wasted costs order under rule 10(3). Repeated defaults will almost invariably be considered more serious than a single act of non-compliance. In every case the Tribunal will consider the question of whether its process is being misused.

(vi) In an application under rule 8(5) to reinstate a struck out case, the main factors to be considered are the reason for the failure which gave rise to the strike out order, whether there has been any undue delay in applying for reinstatement and whether reinstatement would prejudice the other party.

(vii) The values of efficiency and expedition will be promoted and due observance of the overriding objective will be enhanced by adherence to the principles and standards of pleading rehearsed in [28] – [32].

(viii) In judicial review cases, applications to amend so as to enable a new or later decision to be challenged must be made proactively and timeously. Such applications will be determined on their merits and giving effect to the overriding objective.

No further guidance is given on the issue of wasted costs, but the Hamid line of judicial review cases has continued in the Upper Tribunal and the Cancino case also gives relevant guidance on the meaning of unreasonable conduct, albeit in the context of appeals rather than applications for judicial review. These issues are covered in detail in the Free Movement online courses on Urgent injunction applications and Costs in immigration cases, both of which include a relevant podcast interview with Jawaid Luqmani of Luqmani Thompson Solicitors.

The poor litigation conduct that provoked this reaction was essentially amendment of grounds at a hearing causing that hearing to be abandoned and total non compliance with an order for a protracted period or indeed at all. At the next hearing no apology was offered, only defiance, and several key documents that could have been available were not or were defective. This led to a further adjournment with an order for amended grounds, a proper bundle to be assembled and served and skeleton arguments.

The order was once again entirely ignored.

The strike out application was granted at the next hearing in an oral judgment. It emerged that counsel has experienced personal problems and was acting pro bono, making the brief difficult to return but these were rejected as adequate explanations. The litigation conduct was described as a misuse of the process of the tribunal, a gross waste of time, defiant disobedience of the tribunal by the representatives and grave disrespect for the tribunal.

Perhaps rather provocatively, before the written detailed reasons could follow the oral judgment, counsel applied for reinstatement. This application was refused in quite strident terms.

The President addresses the issue of ‘moving goalposts’ in immigration judicial review litigation, where the Respondent regularly re-writes her decision letter with a view to improving the reasoning and rendering the judicial review application historic. Sympathy will be shown to applicants in such circumstances but representatives must to be alive to the need to amend:

35. Where amendment is pursued, it normally takes the form of substituting the later decision as the new target of the Applicant’s challenge. Amendment of the grounds will also be necessary, to reflect the advent of this new fact and to incorporate any appropriate additional facts. Furthermore, there will inevitably be supplementary evidence in the form of the new decision and, possibly, other materials, such as correspondence and written representations bearing on the new decision made. The Respondent’s consent to amend and the Court’s permission to amend must be sought proactively and timeously in every case. It should only rarely be necessary to convene an interlocutory or case management hearing for this purpose.

36. The Upper Tribunal recognises that, in the real world of contemporary litigation, events and developments such as those described above may render compliance with directions difficult or impossible to achieve. Where this occurs, the Respondent’s consent to and the Tribunal’s authorisation of a revised timetable should be sought proactively and timeously. Inertia will be unacceptable.

Either as well as or in some cases as an alternative to amendment, representatives might consider seeking costs for the litigation up to the point of the new decision letter. See for example R (on the application of Jennifer Kerr) v Secretary of State for the Home Department IJR [2014] UKUT 493 (IAC), covered in the Free Movement costs course. The Home Office practice of issuing new decisions and reasons and the tribunal’s tolerance for such conduct makes reasons-based immigration judicial reviews extremely difficult and raises difficult tactical questions.

Finally, returning to SN, a personal wasted costs order is made jointly against solicitors and counsel, there being “no redeeming or mitigating factor of any kind.”