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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ip v Solicitors Regulation Authority [2018] EWHC 957 (Admin) (26 April 2018) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2018/957.html Cite as: [2018] EWHC 957 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE LANE
____________________
| VAY SUI IP |
Appellant |
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- and |
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| SOLICITORS REGULATION AUTHORITY |
Respondent |
____________________
Mr B Tankel (instructed by Capsticks Solicitors) for the respondent
Hearing date: 15 March 2018
____________________
Crown Copyright ©
Mr Justice Lane:
A. Introduction
"10. These late, meritless applications by people who face removal or deportation are an intolerable waste of public money, a great strain on the resources of this court and an abuse of a service this court offers. The court therefore intends to take the most vigorous action against any legal representatives who fail to comply with its rules. If people persist in failing to follow the procedural requirements, they must realise that this court will not hesitate to refer those concerned to the Solicitors Regulation Authority.
11. That is a warning for the future. We hope it will be unnecessary to have any further hearings of this kind or to refer anyone to the Solicitors Regulation Authority, but we will not hesitate to do so where there is a failure to comply with the court's requirements."
B. The Upper Tribunal hearing on 18 May 2015
"A. Introduction
1. There is before the Tribunal an issue which has arisen out of a concern that the firm of Sandbrook Solicitors ("Sandbrook") has engaged in a systematic course of conduct designed to undermine the immigration system which amounts to a persistent abuse of process of the Court. In particular, the cases which are before us exhibit a pattern whereby injunctions to restrain imminent removal, invariably upon a without-notice basis, are being sought in immigration cases but, when granted, are not pursued by the service of proceedings. The pattern emerging suggests that a strategy or tactic is being deployed whereby without-notice injunctions are sought and then when granted the case is permitted to fade away from sight with the consequence that the failed asylum seeker or immigrant remains in the United Kingdom below the radar. It is typical of such case that the person subject to removal is in detention pending removal but that once interim relief is granted the individual is released from detention. In many such cases the individual then absconds. In some cases, where the Secretary of State for the Home Department ("SSHD") has finally caught up with the applicant and seeks, yet again, to remove the person from the UK, further without-notice applications for injunctive relief are then sought and obtained without informing the Judge hearing the application of the prior history to the case. The stratagem is also facilitated by the legal representative simply refusing to respond to requests from Court officials or the Home Office or Treasury Solicitors.
2. In a recent judgment of the Divisional Court, The Queen on the application of Adil Akram & Amir Akram v SSHD (20th April 2015) the President of the Queen's Bench Division stated, also in a case in which the conduct of solicitors acting on behalf of asylum seekers was in issue:
"It is not surprising that those who seek asylum or to regulate their immigration status in order to remain in this country take whatever steps are open to them in order to do so. To that extent, they are vulnerable and those who practise in this area of the law must always be acutely conscious of the need for a thorough understanding of the law, fully appreciating that pursuing litigation without arguable grounds is potentially unprofessional. This Court has demonstrated its intention to take a proactive approach to such cases in order to enforce standards and to ensure that the time of the Court (not to say public and private funding of such litigation) is not wasted. That much is clear from the principles set out in the earlier decisions of the Court in Hamid [2012] EWCH 3070 (Admin) and Butt [2014] EWHC 264 (Admin). Similar statements of principle and concern have been made in the context of appeals and jurisdiction conducted before the Upper Tribunal (Immigration and Asylum Chamber) ("UTIAC"): See Okundu & Abdussalam v Secretary of State for the Home Department [2014] UKUT 377 (IAC)"
3. In that case the Court emphasised that there was a pressing need for all legal representatives in judicial review proceedings to act in a professional manner both towards their clients but also, and critically, towards the Court, bearing in mind that their paramount duty was to the Court itself and that this took precedence over the duty they owed to their clients. The need for the warning to be taken seriously increases as the resources available to the Courts and Tribunals to act efficiently and fairly decrease. If the time of the Courts and Tribunals and their resources are absorbed dealing with utterly hopeless and/or unprofessionally prepared and conducted cases, then other cases, that are properly advanced and properly prepared, risk not having devoted to them the resources they deserve.
4. The facts that are set out below reflect what has become an all too familiar and depressing pattern in which legal representatives demonstrate a lack of care and concern for the substantive and procedural rules governing claims for judicial review. They suggest, in our view, a deliberate disregard for the professional duties that all legal representatives owe to the Court, and in the present case to the Tribunal.
5. As has now been made very clear in a growing body of case law the Courts and Tribunal have the power and right to refer to relevant authorities, including the Solicitors Regulation Authority ("SRA"), the conduct of legal representatives who seem to the Court or Tribunal to fall below the standards required of professionals appearing on behalf of immigrants and asylum seekers."
" serious concerns that the conduct of the legal representatives has fallen materially below the bare minimum standard that we consider it proper for a solicitor to adopt in relation to its duty to the Court and the Tribunal." (paragraph 43)
"51. For all the above reasons, we entertain serious concerns as to the conduct of Sandbrook in the conduct of its immigration practice. We reiterate that we make no formal findings of fact against either Sandbrook or any individual solicitor employed therein. However, we refer the conduct of Sandbrook, and its solicitors, to the SRA for investigation. We will send to the SRA the Court files on the cases which are of concern to us together with a copy of this judgment."
C. The SRA's response
"Allegation 1.1
The Respondent brought judicial review applications which were totally without merit and an abuse of process. This was contrary to Principles 1, 2 and 6 of the SRA Principles 2011 and failed to achieve Outcomes 5.1, 5.2, 5.3 and 5.6 of the SRA Code of Conduct 2011.
Allegation 1.2
The Respondent engaged in a systematic course of conduct designed to undermine the immigration system, amounting to a persistent abuse of the process of the Court. This was in breach of Principles 1, 2, 3, 6 and 8 of the SRA Principles 2011 and the Respondent failed to achieve Outcomes 5.1, 5.2, 5.3 and 5.6 of the SRA Code of Conduct 2011.
Allegation 1.3
The Respondent failed to act in accordance with the duty of candour owed by legal representatives upon a without notice application for interim relief and failed to place the full facts before the Court. It is further alleged that by so acting he was reckless (although recklessness is not a necessary element of this allegation). This was contrary to Principles 1, 2 and 6 of the SRA Principles 2011 and the Respondent failed to achieve Outcomes 5.1, 5.2, 5.3 and 5.6 of the SRA Code of Conduct 2011.
Allegation 1.4
The Respondent failed to follow correct court procedures by failing to pursue judicial review claims and/or serve a Notice of Discontinuance following the grant of interim relief. This was contrary to Principles 1, 2, 6 and 7 of the SRA Principles 2011 and failed to achieve Outcomes 5.1, 5.2, 5.3 and 5.6 of the SRA Code of Conduct 2011.
Allegation 1.5
The Respondent failed to co-operate with the Court by not responding to correspondence in a timely manner and not being able to answer specific queries in relation to the relevant files at the hearing of 18 May 2015. This was contrary to Principles 1, 2, 6 and 7 of the SRA Principles 2011 and the Respondent failed to achieve Outcomes 5.3 and 5.6 of the SRA Code of Conduct 2011.
Allegation 1.6
The Respondent misled the Court at the hearing of 18 May 2015 by stating himself and through his representative that the reason for Mr Javid's non-attendance at that hearing was Mr Javid's ill health. This was contrary to Principles 1, 2 and 6 of the SRA Principles 2011 and failed to achieve Outcomes 5.1 and 5.2 of the SRA Code of Conduct 2011.
2. Dishonesty is alleged with respect to the allegation at paragraph 1.6 although dishonesty is not an essential ingredient to prove the allegation."
"1. Uphold the rule of law and the proper administration of justice;
2. Act with integrity;
3. Not allow your independence to be compromised;
6. Behave in a way that maintains the trust the public places in you and in the profession of legal services;
7. Comply with your legal and regulatory obligations and deal with your regulators and ombudsmen in an open, timely and co-operative manner;
8. Run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles;"
"5.1 - You do not attempt to deceive or knowingly or recklessly mislead the court.
5.2 - You are not complicit in another person deceiving or misleading the court.
5.3 - You comply with court orders that place obligations on you.
5.6 - You comply with your duties to the court."
D. The SDT's decision and the appellant's challenge: in outline
E. The "weak spot": paragraphs 353 and 353A of the Immigration Rules
"Fresh Claims
353. When a human rights or asylum[1] claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection
This paragraph does not apply to claims made overseas.
353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise."
F. The legal landscape
"13. Along with the introduction of these additions to the Immigration Rules, the Secretary of State issued instructions regarding the approach to be applied by her officials in deciding whether to grant leave to remain outside the Rules, in the exercise of the residual discretion she has to grant such leave. The Secretary of State requires such leave to be granted in exceptional cases, but in paragraph 3.2.7d of the instructions she has amplified the guidance for the approach to be adopted, in these terms:
"3.2.7d Exceptional circumstances
Where the applicant does not meet the requirements of the rules refusal of the application will normally be appropriate. However, leave can be granted outside the rules where exceptional circumstances apply. Consideration of exceptional circumstances applies to applications for leave to remain and leave to enter. "Exceptional" does not mean "unusual" or "unique". Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in EX.1 of Appendix FM have been missed by a small margin. Instead, "exceptional" means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. That is likely to be the case only very rarely.
In determining whether there are exceptional circumstances, the decision maker must consider all relevant factors, such as:
(a) The circumstances around the applicant's entry to the UK and the proportion of the time they have been in the UK legally as opposed to illegally. Did they form their relationship with their partner at a time when they had no immigration status or this was precarious? Family life which involves the application putting down roots in the UK in the full knowledge that their stay here is unlawful or precarious, should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by a person lawfully present in the UK.
(b) Cumulative factors should be considered. For example, where the applicant has family members in the UK but their family life does not provide a basis for stay and they have a significant private life in the UK. Although under the rules family life and private life are considered separately, when considering whether there are exceptional circumstances private and family life can be taken into account.
If the applicant falls to be granted because exceptional circumstances apply in their case, they may be granted leave outside the rules for a period of 30 months and on a 10 year route to settlement."
14. The definition of "exceptional circumstances" which is given in this guidance equates such circumstances with there being unjustifiable hardship involved in removal such that it would be disproportionate i.e. would involve a breach of Article 8. The practical guidance and illustrations given in the passage quoted above support that interpretation. No challenge is brought to the lawfulness of this guidance. In my view, it gives clear and appropriate guidance to relevant officials that if they come across a case falling outside the new rules, they nonetheless have to consider whether it is a case where, on the particular facts, there would be a breach of Article 8 rights if the application for leave to remain were refused.
27. There is, in my judgment, nothing untoward in the fact that the new rules do not necessarily track absolutely precisely and provide in detail in advance for every nuance in the application of Article 8 in individual cases. I do not think it would be feasible, or even possible, to produce simple Immigration Rules capable of providing clear guidance to all the officials who have to operate them that did that. That was true of the Immigration Rules prior to their amendment, and it could not be suggested that they were unlawful as a result. As observed by Lord Bingham in Huang at [17] "It is a premise of the statutory scheme enacted by Parliament that an applicant may fail to qualify under the rules and yet may have a valid claim by virtue of article 8." In his speech in Huang, at [5]-[13], Lord Bingham explained how the law provides that immigration officers, entry clearance officers and all staff at what is now the United Kingdom Border Agency should take decisions in a way that complies with individuals' Convention rights, including under Article 8, and how an appeal will lie in defined cases to what is now the First-tier Tribunal on human rights grounds. At paras. [14]-[18], Lord Bingham explained the task of the appellate immigration authority in just the type of case where an applicant fails under the Immigration Rules but nevertheless has a valid claim under Article 8 to remain in the country. If, in relation to a particular immigration decision, no appeal is provided for, the proper compliance of immigration officials with their obligation (in particular, under section 6(1) of the HRA) to act in a way which is compatible with Convention rights will be enforced by this Court on an application for judicial review, such as has been brought in this case.
28. As appears from the new guidance issued by the Secretary of State in relation to exercise of her residual discretion to grant leave to remain outside the Rules, as set out above, and as Mr Peckover makes clear in his witness statement, the new rules contemplate that there will be some cases in which a right to remain based on Article 8 can be established, even though falling outside the new rules. Therefore, the basic framework of analysis contemplated by Lord Bingham in Huang continues to apply as was recognised by the Upper Tribunal in Izuazu.
29. Nonetheless, the new rules do provide better explicit coverage of the factors identified in case-law as relevant to analysis of claims under Article 8 than was formerly the position, so in many cases the main points for consideration in relation to Article 8 will be addressed by decision-makers applying the new rules. It is only if, after doing that, there remains an arguable case that there may be good grounds for granting leave to remain outside the Rules by reference to Article 8 that it will be necessary for Article 8 purposes to go on to consider whether there are compelling circumstances not sufficiently recognised under the new rules to require the grant of such leave.
38. The present case does not involve deportation of an individual who has committed serious crimes in the United Kingdom. Rather, it involves a claimant who has overstayed his leave to remain in the country and who, after his leave to remain overstayed his leave to remain in the country and who, after his leave to remain ended, has formed a relationship with Ms Palmer which constitutes family life. There are no children affected by the decision. The family life between the Claimant and Ms Palmer was established at a time when it was known to be precarious, because of the absence of any right on the part of the Claimant to remain in the United Kingdom.
41. The approach explained in the Strasbourg case-law indicates that where family life is established when the immigration status of the claimant is precarious, removal will be disproportionate only in exceptional cases; and also that consideration of whether there are insurmountable obstacles to the claimant's resident spouse or partner relocating to the claimant's country of origin to continue their family life there will be a highly material consideration. This is not to say that the question whether there are insurmountable obstacles to relocation will always be decisive. The statement of general approach referred to above refers to a range of factors which may bear upon the question of proportionality. For example, the extent to which there has been delay by the host state in taking a decision to remove a foreign national may be relevant (a factor discussed in EB (Kosovo)). Therefore, it cannot be said that in every case consideration of the test in Section EX.1 of whether there are insurmountable obstacles to relocation will necessarily exhaust consideration of proportionality, even in the type of precarious family life case with which these proceedings are concerned. I agree with the statement by the Upper Tribunal in Izuazu in the latter part of para. [56], that the Strasbourg case-law does not treat the test of insurmountable obstacles to relocation as a minimum requirement to be established in a precarious family life case before it can be concluded that removal of the claimant is disproportionate; the case-law only treats it as a material factor to be taken into account.
42. Nonetheless, I consider that the Strasbourg guidance does indicate that in a precarious family life case, where it is only in "exceptional" or "the most exceptional" circumstances that removal of the non-national family member will constitute a violation of Article 8, the absence of insurmountable obstacles to relocation of other family members to that member's own country of origin to continue their family life there is likely to indicate that the removal will be proportionate for the purpose of Article 8. In order to show that, despite the practical possibility of relocation (i.e. the absence of insurmountable obstacles to it), removal in such a case would nonetheless be disproportionate, one would need to indentify other non-standard and particular features of the case of a compelling nature to show that removal would be unjustifiably harsh.
43. On this interpretation of the case-law, the gap between the test for leave to remain under EX.1(b) and the result one would arrive at by direct consideration of Article 8 in the precarious family life class of case is likely to be small. In the majority of such cases, if the applicant for leave to remain cannot show that there are insurmountable obstacles to relocation of a spouse or partner to his or her country of origin so as to meet that part of the test laid down in EX.1(b), they will not be able to show that their removal is disproportionate."
"42. At para 40, Sales J referred to a statement in the case law that, in "precarious" cases, "it is likely to be only in the most exceptional circumstances that the removal of the non-national family member will constitute a violation of art. 8". This has been repeated and adopted by the ECtHR in near identical terms in many cases. At paras 41 and 42, he said that in a "precarious" family life case, it is only in "exceptional" or "the most exceptional circumstances" that removal of the non-national family member will constitute a violation of article 8. In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be "exceptional") is required to outweigh the public interest in removal. In our view, it is no coincidence that the phrase "exceptional circumstances" is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals.
43. The word "exceptional" is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the "exceptional circumstances"."
"79. When it analysed the reference to "exceptional circumstances" in the new rule 398, the Court of Appeal in the MF (Nigeria) case had well in mind the risk that the phrase might be misunderstood. It concluded at paras 41 and 42, in my view correctly, that the rule was no more laying down a test of exceptionality than had been Lord Bingham in the Razgar case or indeed than had been the Strasbourg court in its analysis of the situation where family life was precarious. It continued:
"Rather [the rule means] that, in approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be "exceptional") is required to outweigh the public interest in removal."
Then, at para 43, the Court of Appeal articulated the general rule which I have set out at para 66 above and by which in effect it substituted the phrase "very compelling reasons" for that of "exceptional circumstances". In my view its substitution was wise and, as I have said, its general rule was correct. In July 2014, when introducing changes to the rules to accompany the coming into force of the 2014 Act, the Secretary of State made a corresponding amendment to rule 398 so as, among other things, to substitute the words "very compelling" for the word "exceptional"" (Lord Reed).
"58. The expression "exceptional circumstances" appears in a number of places in the Rules and the Instructions. Its use in the part of the Rules concerned with the deportation of foreign offenders was considered in Hesham Ali. In the present context, as has been explained, it appears in the Instructions dealing with the grant of leave to remain in the UK outside the Rules. Its use is challenged on the basis that the Secretary of State cannot lawfully impose a requirement that there should be "exceptional circumstances", having regard to the opinion of the Appellate Committee of the House of Lords in Huang."
G. The SDT's decision in more detail
"148.9 The Tribunal found it incredible that a solicitor specialising in immigration cases could advise that there was a change in circumstances, still less that there was a "good" prospect of success, simply on the basis that Mr C and JC were undergoing difficulties. Such difficulties were no doubt normal in such cases. The Home Office had already determined all of the issues concerning Ms AZ's personal and family life, and whether there were exceptional human rights grounds on which she could remain in the UK."
" as officers of the Court, are expected to uphold the rule of law and the proper administration of justice. In the context of ex parte applications there is a particular duty of candour, to ensure that the Court is presented with the relevant facts and issues as, by their nature, there will be no representations from anyone in opposition to the application."
"156. The Tribunal noted that all of the injunction orders in issue had been made in terms that they would subsist until further order. Whilst the precise means by which the proceedings may be brought to an end may vary, it was clearly to be assumed that the Court expected something to happen after the injunction was granted. In particular, the proceedings had to be served. Thereafter, they may be compromised and a Consent Order submitted or contested. The costs of the proceedings were not determined when the injunctions were granted; this was an outstanding issue which had to be addressed by some means."
" Ms PZ 3 April, 9 May and 4 December 2014;
Ms AZ 26 January 2015;
Mrs MW 3 November 2014 (the "new" medical evidence being insufficient)."
"160. The Tribunal noted that the parties agreed that when considering integrity, the Tribunal could have regard to the statement in Hoodless that " "integrity" connotes moral soundness, rectitude and steady adherence to steady adherence to an ethical code. A person lacks integrity if unable to appreciate the distinction between what is honest or dishonest by ordinary standards ". The Tribunal also noted the significant line of cases which indicated that "integrity" could be recognised by the Tribunal as present or not on the basis of the facts of the case.
161. The Tribunal also noted and found that it could be an abuse of process to conduct court proceedings in a way which was in strict compliance with the relevant rules, but which had the effect of frustrating the proper administration of justice."
"Making a JR application may have been permitted, pursuant to paragraph 353(A) of the IR but it must have been clear to the [appellant] that the application lacked any real merit, and was therefore an abuse of process. The application achieved the client's desired result, of postponing his deportation" (paragraph 162.3)
"162.13 The Tribunal was satisfied that bringing the JR applications as he did showed that the [appellant] had failed to uphold the rule of law and, more pertinently, the proper administration of justice and was therefore in breach of Principle 1. The public would not expect a solicitor to engage in such conduct and it was, as alleged, likely to diminish rather than maintain the trust the public would place in the profession and the provision of legal services. In assessing whether the conduct also lacked integrity, the Tribunal found that the [appellant] knew that what he was doing was inappropriate, but carried on regardless. He had chosen to carry out his clients instructions, in an attempt to allow them to stay in the UK, in circumstances where he knew, or should have known, that there was no real merit in his clients' applications. Such conduct lacked integrity.
162.14 The Tribunal found that the [appellant] had knowingly or recklessly misled the court. In particular, he had failed to provide full and proper information to the Judges charged with making urgent decisions, without the benefit of hearing from the other party. The breach of duty of candour was made out. The Tribunal had found that the [appellant] himself prepared/drafted and had been involved in the preparation of all the documents submitted to the Court, he had thereby been complicit in his clients' endeavour to mislead the Court. The relevance of Outcome 5.3 to this allegation was not understood; there were no relevant Court orders in issue. The [appellant's] duties to the Court included the duty to be frank, particularly on ex parte applications; he was clearly in breach of that duty.
162.15 The Tribunal found, so that it was sure, that the [appellant] was in breach of Principles 1, 2 and 6, and had failed to achieve Outcomes 5.1, 5.2 and 5.6 of the Code, with respect to Mrs MW, Ms PZ and Ms AZ. Whilst not being proof of this allegation, the matters noted above with regard to Ms T and Mr GL could also be taken into account in considering the other allegations, in particular allegation 1.2."
"163.18 The Tribunal was satisfied that it was possible for a technically correct procedure to be used which nevertheless amounted to an abuse of process because it was undertaken for an improper purpose. The Tribunal accepted that a finding that a case was TWM did not mean, in itself, that it was an abuse of process to have brought that claim. It also accepted that making multiple applications was not, in itself, an abuse of process."
"As a solicitor involved in drafting and issuing JR/injunction applications, the Tribunal found it was completely unacceptable for the [appellant] to take the risk of submitting incomplete information as this [appellant] had duties to the [Upper Tribunal] which took precedence over the instructions of a particular client. The Tribunal was satisfied that with regard to this allegation, the [appellant] had acted recklessly."
H. Discussion
(a) The appellant's involvement in producing judicial review grounds
(b) Going "on the record"/limitations in retainer
"The Tribunal considered that as this was a case in which the [appellant] had circumvented the relevant rules and processes in particular by "running" JR cases on which he remained off the record there could be little confidence that he would adhere to a restriction not to be involved in urgent immigration cases."
"3. The defendant solicitor in this case was instructed to put into an acceptable form the terms of a consent order agreed between the husband and the wife following divorce. Although the underlying matrimonial proceedings were in progress at a time when legal aid was available, the issues thrown up by this case have now assumed wider importance. That is because legal aid is no longer available for divorcing couples seeking to resolve their financial disputes. As King LJ explains in her judgment, it is now commonplace for the parties to negotiate their own agreements and then to instruct solicitors for limited purposes, such as drawing up a consent order for the court's approval under section 25 of the Matrimonial Causes Act 1973. Therefore it is now often the case in the matrimonial context that solicitors undertake a limited retainer of the kind which is in issue in the present case."
"74. Following a contested financial remedy case where there are no lawyers representing the parties, the District Judge will draft an order which reflects his or her decision; there is no scope for ambiguity or misunderstanding as he or she knows precisely what he wishes to achieve and drafts the order accordingly. When however two unrepresented parties come before the judge with an agreement, the situation is entirely different. The district judge has neither the time, nor should he or she attempt, to interpret the minutiae of the agreement and draft/redraft the proposed consent order. That is not to say that he will not correct obvious errors and technical defects, but his task is to approve the order, not to sit with the parties and painstakingly work through with them every possible parameter of the draft in order to ensure they have considered every angle and future eventuality; to do so runs the risk that the judge will be seen to be given advice or is seeking to interfere or undermine an otherwise unimpeachable agreement reached between the parties.
75. In order to address this problem a number of solicitors specialising in matrimonial finance cases now offer (as they have in personal injury cases for sometime), bespoke or "unpacked" services whereby they will undertake to act for a litigant in person in relation to a discrete part of a case which is particularly challenging to a lay person. Most commonly in matrimonial finance cases, this is the drafting of the Form E (financial disclosure), or, as here, the drafting of the order. This service is invaluable to both courts and litigants alike, saving as it does court time but also stemming the increasing number of applications to the courts in relation to the working out of orders which do not accurately reflect the true intentions of one or other of the parties.
76. There would be very serious consequences for both the courts and litigants in person generally, if solicitors were put in a position that they felt unable to accept instructions to act on a limited retainer basis for fear that what they anticipated to be a modest and relatively inexpensive drafting exercise of a document (albeit complex to a lay person) may lead to them having imposed upon them a far broader duty of care requiring them to consider, and take it upon themselves to advise on aspects of the case far beyond that to which the believe themselves to have been instructed.
77. It goes without saying that where a solicitor acts upon a limited retainer, the supporting client care letters, attendance notes and formal written retainers must be drafted with considerable care in order to reflect the client's specific instructions. It may well be that with further passage of time, tried and tested formulas will be devised and used routinely by practitioners providing such a limited retainer service. In the present case the defendant, as identified by Jackson LJ, did not observe best practice having failed to set out with precision the limits of the retainer in the client care letter. Notwithstanding that error, I too am entirely satisfied that the defendant was acting under a limited retainer and carried out the work which the claimant had instructed her to undertake."
(c) Applications for LTR: chances of success
(d) The "weak spot"
"21. the SDT was incorrect to hold that by the appellant strictly complying with the rules, he could frustrate the proper administration of justice If the SDT is right in this, then registrants can have no succour that they have protection from regulatory sanction by strictly complying with the rules."
"163.18 The Tribunal was satisfied that it was possible for a technically correct procedure to be used which nevertheless amounted to an abuse of process because it was undertaken for an improper purpose. The Tribunal accepted that a finding that a case was TWM did not mean, in itself, that it was an abuse of process to have brought that claim. It also accepted that making multiple applications was not, in itself, an abuse of process."
"54. The making of last minute representations to the Secretary of State, which are claimed to amount to a "fresh claim" for asylum or leave to remain for the purposes of para. 353 of the Immigration Rules, and the making in parallel of an application for urgent interim relief to prevent the removal of an immigrant pending consideration of those representations, can be highly disruptive of attempts by the Secretary of State to remove individuals who in truth have no right to be here. Where a removal which is planned and in progress is stopped at the last moment, there may be a significant delay before the Secretary of State can set up suitable new arrangements for removal. Also, it is likely that the substantial cost of the aborted removal will be wasted.
55. The courts have had experience of some applications for interim relief being made by legal advisers where there is no real merit in them, but as an abuse of process to disrupt the removal operations and to buy more time in the UK for their clients. The courts have therefore already had occasion to give guidance emphasising the professional obligations of legal advisers to make applications for interim relief to prevent removal promptly and with a maximum of notice which is feasibly possible to be given to the Secretary of State: see, in particular, R (Madan) v Secretary of State for the Home Department and the Hamid case, both referred to in the Administrative Court Guide.
56. It is unnecessary to set out again in this judgment the guidance which has already been given so clearly in those cases. We take this opportunity, however, to reiterate the importance of that guidance. The basic principles are clear: (i) steps to challenge removal should be taken as early as possible, and should be taken promptly after receipt of notice of a removal window of the kind which SB received on 4 July 2017 in this case; and (ii) applications to the court for interim relief should be made with as much notice to the Secretary of State as is practicably feasible."
(e) Effect of stays in cases challenging removal directions
(f) The Upper Tribunal's judgment
(g) Integrity and morality
" as someone who lacked a steady adherence to a moral code; that it did not appear to have occurred to him that he should act as a "filter" to ensure that the system would not be clogged up with hopeless, urgent applications which neither the court nor the Home Office will consider favourably with knowledge of the true facts and circumstances; and that he demonstrated a belief that his duties were to his client, but he was blind to his duties to the court and in the wider context of the administration of justice."
"94. The general law imposes criminal and/or civil liability for many, but not all, dishonest acts or omissions. As explained most recently in Ivey, the test for dishonesty is objective. Nevertheless, the defendant's state of mind as well as their conduct are relevant to determining whether they have acted dishonestly.
95. Let me now turn to integrity. As a matter of common parlance and as a matter of low, integrity is a broader concept than honesty. In this regard, I agree with the observations of the Divisional Court in Williams and I disagree with the observations of Mostyn J in Malins.
96. Integrity is a more nebulous concept than honesty. Hence it is less easy to define, as a number of judges have noted.
97. In professional codes of conduct, the term "integrity" is a useful shorthand to express the higher standards which society expects from professional persons and which the professions expect from their own members. See the judgment of Sir Brian Leveson P in Williams at [130]. The underlying rationale is that the professions have a privileged and trusted role in society. In return they are required to live up to their own professional standards.
98. I agree with Davis LJ in Chan that it is not possible to formulate an all-purpose, comprehensive definition of integrity. On the other hand, it is a counsel of despair to say: "Well you can always recognise it, but you can never describe it."
99. The broad contours of what integrity means, at least in the context of professional conduct, are now becoming clearer. The observations of the Financial Services and Markets Tribunal in Hoodless have met with general approbation.
100. Integrity connotes adherence to the ethical standards of one's own profession. That involves more than mere honesty. To take one example, a solicitor conducting negotiations or a barrister making submissions to a judge or arbitrator will take particular care not to mislead. Such a professional person is expected to be even more scrupulous about accuracy than a member of the general public in daily discourse.
101. The duty to act with integrity applies not only to what professional persons say, but also to what they do. It is possible to give many illustrations of what constitutes acting without integrity. For example, in the case of solicitors:
i) A sole practice giving the appearance of being a partnership and deliberately flouting the conduct rules (Emeana);
ii) Recklessly, but not dishonestly, allowing a court to be misled (Brett);
iii) Subordinating the interests of the clients to the solicitors' own financial interests (Chan);
iv) Making improper payments out of the client account (Scott);
v) Allowing the firm to become involved in conveyancing transactions which bear the hallmarks mortgage fraud (Newell-Austin);
vi) Making false representations on behalf of the client (Williams).
102. Obviously, neither courts nor professional tribunals must set unrealistically high standards, as was observed during argument. The duty of integrity does not require professional people to be paragons of virtue. In every instance, professional integrity is linked to the manner in which that particular profession professes to serve the public. Having accepted that principle, it is not necessary for this court to reach a view on whether Howd was correctly decided."
(h) Sanction
"191. Mr Malik had urged on the Tribunal consideration of imposing a suspension, perhaps combined with a restriction on the [appellant's] practice at the end of the suspension. This was put on the basis that the [appellant] had acted from noble intentions and could learn from his errors. However, the Tribunal was very concerned that due to his lack of insight into what he had done wrong the [appellant] would remain a hazard to the profession and to the public. As the [appellant] had engaged in a course of conduct which had undermined the justice system, it was hard to contemplate that the public and profession would be able to trust him as a solicitor. Rather than showing insight he had stuck to evidence which lacked credibility. His answers betrayed a lack of comprehension of his role as a solicitor in the wider context of upholding the rule of law and the proper administration of justice. He had not demonstrated that he had understood and learnt lessons and there was no reason to think he would do so at this late stage. The [appellant] had not shown the objectivity or the resilience a solicitor needed to be able to advise clients against certain courses of action. Whilst he may have had a partially altruistic motivation, the [appellant] had been motivated by the desire to achieve successes for his clients (however obtained) which would enhance his reputation and his business. In addition to considering whether suspension for a period would be appropriate, the Tribunal considered what restrictions, if any, could enhance the trust the public would be able to place on the [appellant]. The Tribunal considered that as this was a case in which the [appellant] had circumvented the relevant rules and processes in particular by "running" JR cases on which he remained off the record there could be little confidence that he would adhere to a restriction not to be involved in urgent immigration cases.
192. Whilst the Tribunal considered the option of suspension, it concluded that this was not sufficient to protect the public or the reputation of the profession given the significant misconduct in this case, whether or not restrictions could be imposed at the end of the period of suspension.
193. On the facts of this case, and conscious of the purpose of sanction set out in Bolton, the Tribunal concluded that the reasonable and proportionate sanction was to strike off the [appellant]."
"Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Rolls of Solicitors. Only infrequently, particularly in recent years, has it been willing to order the restoration to the Roll of a solicitor against whom serious dishonesty had been established, even after a passage of years, and even where the solicitor had made every effort to re-establish himself and redeem his reputation. If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the tribunal as an informed and expert body on all the facts of the case. Only in a very unusual and venial case of this kind would the tribunal be likely to regard as appropriate any order less severe than one of suspension."
"6. In Nahal v The Law Society [2003] EWHC 2186 Admin, Dyson LJ considered the effect of the Human Rights Act 1998 on Bolton v The Law Society and, at paragraphs 31 to 33, he adopted the general approach taken by Sir Thomas Bingham in Bolton. He considered the Human Rights Act in no way disturbed or qualified the principles themselves. However, Dyson LJ did consider that that Act affected the general approach of the court to an appeal of this kind. He referred to Langford v Law Society [2002] EWHC 2802 Admin and to the leading judgment of Rose LJ in that case. Rose LJ considered that a greater flexibility is now appropriate in dealing with these appeals. Rose LJ expressed it in this way:
"We must now apply a less rigorous test. We should simply look at the Tribunal's decision in the light of the whole circumstances of the case, always having due respect for the expertise of the Tribunal and giving to their decision such weight as we should think appropriate."
Later Rose LJ added:
"Nevertheless, in following this approach we think that it is good sense to keep in view the obvious reasons that have been repeated over the years for according respect to the views of specialist Tribunals in appeals of this kind."
8. It is, of course, clearly established that solicitors may be struck off the Roll for offences not involving dishonesty or personal gain. That follows from the passage in Bolton which I have cited above. Moreover, Mr Miller, who appears on behalf of the respondent, has referred us to other authorities where the draconian sanction of striking off the Roll has been applied, notwithstanding the fact that the cases have not involved dishonesty in any sense. He has referred us to Weston v The Law Society, 29th June 1998. CO/225/1998, and to Williamson v The Law Society [2007] EWHC 1258 Admin Nevertheless, it is important to bear in mind that we are here concerned with a case in which there are no allegations of dishonesty but rather with allegations of a persistent neglect of the interests of the client and a persistent failure to respond to reminders, both from the client and in turn from the professional body, the Law Society."
"22. This court must bear in mind that the Tribunal is an expert and informed tribunal, best able to assess what is needed to uphold standards of integrity, probity and trustworthiness in the profession of solicitor. But it is not restricted to interfering only in "very strong cases". It should interfere where the sanction was "clearly inappropriate" (Law Society v Salsbury [2008] EWCA Civ 1285 [30])."
"189. In considering which of the sanctions best reflected the seriousness of the misconduct and the need to preserve the reputation of the profession, the Tribunal noted that any sanction may well contain a punitive element, although that was not the primary purpose of the sanction. In this instance, the Tribunal considered that a sanction which could act as a deterrent to other members of the profession tempted to make court applications which lacked candour or amounted to an abuse of the court system was appropriate."
(i) Costs
Irwin LJ:
Note 1 The word protection was substituted for asylum on 6 April 2015. [Back]
NOTE: This summary is provided to help in understanding the Court's decision. It does not form part of the reasons for the decision. The full judgments of the Court comprise the only authoritative document. Judgments are public documents and are available at: www.bailii.org.uk
