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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Khan, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 1233 (Admin) (13 May 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1233.html Cite as: [2009] EWHC 1233 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		13th May 2009

1. MR JUSTICE TREACY: This is an application for judicial review lodged as long ago as 27th December 2007. Initially permission was refused on the papers by Wyn Williams J on 15th May 2008. However, at an oral hearing on 15th August 2008, HHJ Behrens, sitting as a Deputy High Court Judge, granted permission. It is apparent that in granting permission HHJ Behrens did so with a degree of hesitation. However, bearing in mind the relatively low threshold test which had to be applied, he considered that although this case was likely to fail it was not bound to fail and accordingly he gave permission.
2. The matter was listed before the court on 13th March 2009. It became apparent on that day, or immediately before that day, that the solicitors representing Mrs Khan had failed to act in pursuit of the application for judicial review, notwithstanding the fact that they had had several months to do so. They came off the record the day before the hearing, having effectively, apparently, done nothing, and a costs order was made against them by HHJ Birtles. The reality of the position is that the failure to be ready for the hearing on 13th March was not the responsibility of this claimant. There was no suggestion that she had failed to co-operate with her solicitors or to do anything which was necessary to progress her case. The failure of the case to be ready to proceed on that day appears to have been the fault of those solicitors. Accordingly, it is unsurprising that, faced with that situation, HHJ Birtles adjourned this hearing for a period of two months. The matter comes therefore before me today.
3. From the information which I have gleaned from questioning Mrs Khan this morning, she approached new solicitors, Blavo & Company, promptly. She saw them on 20th March and they instructed counsel with a view to obtaining legal aid for the presentation of Mrs Khan's case. Counsel advised that the merits of the case did not warrant the grant of legal aid. Mrs Khan tells me, and I have no reason to disbelieve her, that she was informed of that decision or advice from counsel on 5th May. She wrote to the court on 8th May describing the position she found herself in and sought an adjournment of today's hearing. The reality is that the legal aid route having been considered, there is no sensible prospect of public funding for this claimant being provided for the hearing.
4. As Mrs Khan's letter recognises, the other course available to her is to pay privately for legal representation for this court. She is not working and is not permitted to work and so has no means of earning for herself the necessary monies in order to fund legal representation. I asked her what her prospects of raising money were in those circumstances. From the information she provided to me, they appeared to be very slim indeed. She has family members living in this country. She had approached them earlier in these proceedings to fund her. They had apparently refused to do so. She has spoken to them since matters have developed in the way I have already described and received a non-committal answer.
5. Mr Barnes, on behalf of the defendant, opposes the application for the adjournment. He says there is no prospect of change on the financial front. She has no solicitor willing to act for her at present. The legal aid avenue has been explored and been found to be a dead end, without prospect of providing funding, and the claimant herself has frankly acknowledged that she has no immediate prospects of raising money. Those appear to me to be powerful arguments militating against the granting of the adjournment in circumstances where the claim put forward is not, as it appeared to HHJ Behrens, on strong ground and where it does not appear to me, on a review of the papers in preparation for this hearing, to be on strong ground.
6. The difficulty, however, is that Mrs Khan, if she were to proceed today, as she would have to if I were to decline an adjournment, is not going to be in a position to deal with the matter in any effective way before me today. To put it in her words, she said that she had no idea of the case, she is not a lawyer, and, importantly, she does not have with her the case papers which are apparently with the solicitors whom she went to when she was seeking legal aid.
7. That concerns me. The position is that a judge of this court has concluded that there is at least an arguable case to be made. It may not be a strong one, it may be ultimately doomed to failure, but it is an arguable case. This lady before me today is not in a position, in my judgment, to participate effectively in the hearing if the matter were to proceed before me today. Such arguable case as she may have will in truth not be presented to the court for appropriate consideration and evaluation. Cases of this sort necessarily require anxious scrutiny by the court.
8. I am troubled therefore in a situation where a judge has considered that there is a potentially arguable case to be put forward that the interests of justice will simply not be served if I require this woman to present a case to me today in circumstances where she is apparently not prepared and where the information that her case could not be supported by legal aid has come to her relatively recently.
9. In those circumstances, with considerable hesitation and much reluctance, I feel that in the interests of justice I must grant an adjournment in this case, but that adjournment is granted on clear and stringent terms. The case will be adjourned to the first available date after two months, so that it will be heard on a date in July. The purpose of the adjournment is to enable Mrs Khan either to obtain legal representation (to take account of the relatively remote possibility that she may be able to obtain financial support from her family) or to prepare herself to make representations on her own behalf. I stress that this is a case which must proceed on the next occasion. If Mrs Khan is unable to obtain legal assistance for whatever reason, then, whatever the circumstances, the court will expect her to have the papers at court and to present her arguments to the court for the court's consideration as best she can.
10. I indicate that that is the basis upon which I grant this adjournment and I ask you now, Mrs Khan, to confirm to me, that if I put the case off for two months, as I indicated I will, that you understand that if you do not find legal representation within that period of time then you yourself will have to present the case by yourself. Do you understand that?
11. THE CLAIMANT: Yes, my Lord.
12. MR JUSTICE TREACY: Mrs Khan has confirmed that to me in court and I incorporate that into the record of this judgment. I indicate that no further indulgence will be granted. I order that a transcript of this judgment be prepared and placed on the court file so that the judge who comes to hear this matter in July has, in the clearest possible terms before him, the reasons which in the end motivated me, with hesitation, to grant this adjournment on the terms I have indicated. I say once more, for the avoidance of any doubt, that if you do not have legal representation on the next occasion ready to proceed on that occasion, you will have to present the case yourself.
13. Thank you. Just wait there one moment, please.
14. MR BARNES: My Lord, can I just deal with two things?
15. MR JUSTICE TREACY: Yes.
16. MR BARNES: First of all, costs reserved.
17. MR JUSTICE TREACY: Yes.
18. MR BARNES: The second thing, my Lord, is, just to make it clear in open court that if there is any difficulty in Mrs Khan obtaining papers from her current solicitors or former solicitors she should write to the Treasury Solicitors, who will of course provide her with a further bundle if she needs it. So, just to ensure that we do not turn up on the next occasion and find that Mrs Khan does not have the bundle with her, and says "well, I simply could not get hold of a copy".
19. MR JUSTICE TREACY: Do you have contact details for the Treasury Solicitor?
20. THE CLAIMANT: Yes, my Lord.
21. MR JUSTICE TREACY: Right. Well, I will ask that they provide it to you again today before you leave court, so there is no doubt about that. I will ask that these further exchanges form part of the transcript to go before the judge. So the judge next time will have the transcript of my ruling and the remarks which have been made just now.
22. MR BARNES: I am very grateful, my Lord.
23. MR JUSTICE TREACY: Thank you. Thank you both of you.