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Chief disciplinary judge calls in regulators over shambolic immigration litigation

Chief disciplinary judge calls in regulators over shambolic immigration litigation

The High Court has called in the Solicitors Regulation Authority and the Director of Public Prosecutions over the conduct of a shambolic citizenship case. The judgment is Jetly & Anor v Secretary of State for the Home Department [2019] EWHC 204 (Admin).

The circumstances of the case are baffling even when laid out point by point in the judgment. In brief, the claimants’ father, Brij Bishan Jetly, worked as a receptionist at a firm called Archbold Solicitors. He wished to have his sons registered as British citizens under the British Nationality Act 1981. Archbold briefly took up the case pro bono, but pulled out after a pre-action protocol letter was rejected.

Events then took a turn. According to an Archbold partner, Mr Maxy Augustine, unqualified junior staff at the firm — Khaled Umar and Tunde Salami — freelanced on the case without the knowledge of the solicitors:

Mr Augustine stated that at the time when they moved office, it came to Archbold’s knowledge that their brand name had been used and his signature had been “hacked” in some of the applications [made] by the previous staff (in context, this appears to be a reference to Mr Umar with assistance from Tunde Salami).

To confuse matters still further, Archbold moved offices while this was going on. Mr Umar and Mr Salami stayed put and carried on some sort of business using the Archbold address and email accounts. As a result, it appeared to court officials and Government Legal Department that Archbold were still the solicitors responsible for the Jetly’s case.

In fact it was being handled by an outfit called Aaron & Ace. This firm, run by Anis Ali, had also acquired the former address of Archbold Solicitors. It appeared to the High Court that  “there is at least a prima facie case that Mr Ali is simply lending his name to this litigation as a front for Mr Umar”.

Neither the Administrative Court nor the government’s lawyers had any idea that Aaron & Ince was supposed to be involved with the case — in lawyers’ terms, they “were not on the record”.

Net result:

the solicitors who are purporting to act on behalf of the clients were still not formally on the court record 6 months after being instructed (almost 9 months by the time the matter came before me), and they did not comply with the requirements of CPR 42 despite telling the Court they had, whereas the solicitors who are on the court record say that they were never retained in this matter and should not be on the record, but have made no formal application to come off the record despite being advised more than once that they should. To make matters even more confusing, the “new” solicitors have since gone into occupation of the business premises vacated by the “old” solicitors.

All this came to light a day before the judicial review hearing in the Jetley’s case, in September 2018. Court paperwork was also “completely inadequate”. A baffled Administrative Court judge granted a 21-day adjournment for Aaron & Ace to get their house in order.

It was at this point in the chronology that the spectre of calling in the regulator or holding a Hamid disciplinary hearing was aired. Mrs Justice Andrews, who has “primary responsibility for the Hamid jurisdiction”, provides a handy summary of what that entails:

The Hamid jurisdiction, which arises from the inherent jurisdiction of this court to regulate its own procedures in accordance with the overriding objective, is designed to ensure that lawyers conducting litigation abide by the rules of court and otherwise conduct themselves according to proper standards of behaviour, see R(Sathivel) v Secretary of State for the Home Department [2018] EWHC 913 (Admin), now the leading judgment on this topic. Although concerns about the behaviour of legal representatives instructed in immigration cases most often arise in the context of last-minute attempts to resist removal from the UK, the Hamid jurisdiction is not confined to that situation, nor is it confined to the situation in which the underlying claim is utterly without merit.

Despite these rumblings of the judicial volcano, Mr Ali took 54 days to respond to the 21-day deadline. The response, when it came, was unsatisfactory:

Mr Ali provided no explanation for the trial bundle being filed in an inadequate state, or for the absence of an authorities bundle for the hearing on 19 September in contravention of the Court’s previous directions… Nor was there any explanation given by Mr Ali at that stage for why his witness statement, the trial bundle and authorities bundle were not filed and served until 12 November, and why the Claimants had issued no applications before the 21-day deadline expired, the consequence being that the statement of truth remained unsigned, and no attempt had been made to cure that deficiency.

Mr Ali ended his witness statement (which, unlike Mr Augustine’s evidence, bears no statement of truth) by stating that he believes “that myself and the caseworkers acting under my supervision [presumably that includes Mr Umar] at Aaron & Ace solicitors have acted in a professionally appropriate manner towards our clients with due regard for the substantive and procedural rules governing claims for judicial review”. This betrays a breathtaking lack of insight into what is meant by having due regard to the substantive and procedural rules – an impression which has been amply reinforced by subsequent events.

Andrews J took over the mess in December 2018. She issued various directions to be completed within seven days. These directions were not complied with either.

As a result, Andrews J struck out the Jetlys’ case, which would have failed on the merits anyway. She also sent a copy of the judgment to the regulator to investigate the conduct of Mr Umar and Mr Ali, commenting that:

a solicitor who is unable to understand the basic requirements of the CPR and read and understand the terms of a clearly expressed court order should not be conducting litigation. This is a case in which, ever since he took over the conduct of this case, Mr Ali has only made desultory efforts to comply with the obligations on his firm and his clients, and he has displayed an appalling lack of insight into his own behaviour.

She made no criticism of Mr Augustine and Archbold. Andrews J also sent a copy to the DPP, flagging up the possible criminal offence of conducting reserved legal activities without being qualified to do so.

Conor James McKinney

CJ is Free Movement's deputy editor.

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