04.03.2014 – About a year ago, under increasing pressure from the number of judicial review applications made to the High Court (particularly in removal cases), the then President of the Queen’s Bench Division, Sir John Thomas, required the attendance of the solicitor responsible for making an application which was ‘totally without merit’ after his court had to deal with what was described as yet another last-ditch effort to defer removal. The case was Hamid.
The President stated that ‘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 should ensure that ‘non-compliance [would not] continue’ and that the legal representatives concerned had to ‘realise that [the High Court would] not hesitate to refer those concerned to the Solicitors Regulation Authority’.
Since Hamid, there have been three subsequent cases where various legal representatives have been publicly (and heavily) criticised. The alleged conduct involved, amongst other things, breaches of professional conduct by non-disclosure and unqualified lawyers making applications (Awuku); what the court referred to as ‘manifest incompetence’ (B & J); and the issue of proceedings being conducted by lawyers not permitted to practice in this jurisdiction (Butt).
There have been no referrals as yet to the Solicitor’s Regulation Authority by the courts: only promises by the firms involved that appropriate training has or would soon take place, processes improved and solemn assurances that the impugned conduct would not be repeated. The firm in Butt, according to the judgment, had been subject to two similar reprimands previously by the same court.
Towards the end of the judgment in Butt, the new President of the Queen’s Bench Division, Lord Justice Leveson, stated as follows:
‘These courts are not assembled because of our wish to embarrass or otherwise impugn solicitors whose work is conscientious, thorough and in accordance with the highest keepings of the profession. We are, however, determined to ensure that the overly frequent abusive applications in this field of law cease and we will take whatever steps are necessary to do so.’
In light of the recent decision in Butt, we would mention a few points.
Firstly, the strategy of publicly airing the alleged incompetence of these lawyers in an effort to halt the tide of last-minute and poor quality judicial review claims does not appear to be working. They have their own sobriquet (‘Hamid hearings’) and there have now been four such decisions in just over a year. The ‘non-compliance’ which could not be allowed to continue after Hamid, has been repeated. The numbers have not yet gone down. We understand that nearly 3000 judicial applications were made to the Upper Tribunal (Immigration and Asylum Chamber) alone in the first few months of 2014.
Secondly, every time a ‘Hamid Hearing’ is reported the reputation of the profession sinks lower, and particularly affects firms concerned with representing migrants. Every time an immigration firm is dragged over the coals in public (and Hamid was reported in the mainstream press), it reinforces media myths and public perceptions of abuse by immigrants of the appeals system, for example as reported here. It is perhaps no coincidence that the present administration is currently taking steps to circumscribe access to judicial review in the Criminal Courts and Justice Bill.
Thirdly, decisions as to whether solicitors have breached their obligations to clients and to the court are the purview of various independent complaints bodies including the SRA. There exists a tribunal system to consider complaints about exactly these types of alleged breaches. A similar system exists for alleged breaches of professional conduct by barristers.
Fourthly, practitioners ought to be aware that they are required to refer themselves to the SRA if they believe they are in ‘material breach’ of the Solicitors Code of Conduct. When considering whether a breach is ‘material’ the firm should consider, amongst other things, the extent of any risk of loss of confidence in the practice or in the provision of legal services.
Arguably, solicitors who have attended court and admitted that their actions were ‘manifestly incompetent’ may be in breach of ‘Outcome 1.5’ (amongst potentially many others) which requires that ‘the service…provide[d] to clients is competent’. Likewise, it is difficult to see how such a finding of incompetence by the President of the QBD could not risk ‘a serious loss of confidence in the practice’.
It has long been an aphorism of immigration and asylum law that legal representation can kill. It is important that representatives who are not competent to practice or make applications that amount to an abuse of client’s trust, funding and court time are brought to book. However, show trials in the Royal Courts of Justice are clearly not working given the ongoing need to hold ‘Hamid hearings’ and repeated non-compliance, in some cases by the same firms.
The continued publicity on account of the failings of a small minority has ramifications for the whole sector. If the High Court regard these failings as sufficiently serious to “name and shame” the firms involved, given the power available to the SRA, it is surprising that they would not proceed to take the step of a referral. If referred, the firm involved would have the opportunity to explain to the regulator whether their conduct did or did not amount to a breach of professional practice. In the case of solicitors, the SRA would be well suited to carrying out this function, thereby sparing the Court the need to spend further precious judicial time on a matter better suited to professional regulators.
The reaction to these hearings by proficient practitioners in the field is an overwhelming sense of fear of public rebuke: for the practitioner who has no regard for the procedure rules or obligations to the Court, however, the message is simply not getting through. The willingness of firms and counsel to undertake urgent applications may well be affected by the perception that, whether undertaken proficiently or not, firms conducting these cases may come to be regarded as “fair game”.