Workshop: Making urgent judicial review applications
Richard Honey addresses the duties placed on a lawyer when making an application for urgent consideration in judicial review
In a series of recent cases the President of the Queen's Bench Division has given some practical guidance, and some stern warnings, to solicitors applying for urgent judicial review (JR) applications. Hamid and Awuku were immigration cases but the principles apply to other urgent JRs, such as when a decision is about to be taken or when a development is about to commence.
The court has recently revised Form N463 to require a statement of the reasons for urgency, the timetable for hearing the matter, the justification for immediate consideration, the date and time of when it was first appreciated that an immediate application might be necessary, the reasons for any delays, and what has been done to put the defendant and any interested party on notice.
Where the requirements of Form N463 are not met, the court said that a judge might either refuse to consider the application or refuse the application itself because proper reasons were not given. The court also said that these remarks applied to renewal applications in JR, when permission has already been refused on the papers. The onus on counsel and solicitors to ensure a case is properly arguable is high.
The court also drew attention to the case of Madan [2007] 1 WLR 2891 and the duties on lawyers in ex parte applications, especially to draw the judge's attention to any matter adverse to their client's case. There rests upon a lawyer as an officer of the court the highest obligations of disclosure when making applications for ex parte relief. It was said that the court relies upon lawyers for the performance of that obligation when considering without ?notice applications.
The court made very firm statements about what can amount to professional misconduct. It said that if solicitors did not comply the court would require the attendance of the solicitor and his senior partner and will name the firm concerned in the judgment. It also said that the court would not hesitate to refer those concerned to the Solicitors Regulation Authority (SRA) as part of taking 'the most vigorous action against any legal representatives who fail to comply with its rules'.
The judgment in the first case, Hamid from October 2012, concluded with the court expressing the hope that it would be unnecessary to have any further hearings of the kind. Since then there have been at least two more, Awuku and Awuku No 2 in November and December, in which the solicitors involved have been named. In the second case, the president noted that 'the court is disappointed' that it had to consider the issue again '“ including another problem in the same case of Hamid. In that case, the court said that if the firm erred again it would be reported to the disciplinary branch of the SRA. It also said that was the last time that the court would, absent strong mitigating circumstances, fail to refer solicitors to the SRA for breaches of the duty to the court.
In one case, the offending application was not seen by a qualified lawyer before the firm sent it to the court. The court stressed that it was not appropriate for an application to be made by a case worker without scrutiny by a qualified lawyer and indeed said that applications must be scrutinised diligently and carefully. The professional obligation rests upon the solicitor and it is the solicitor and counsel who are accountable to the court for the proper discharge of their professional obligations.
It is apparent that the judges of the Administrative Court are no longer prepared to tolerate bad practice. Although that appears to arise most often in immigration cases, the court's increased focus on the rules and professional standards will affect all those who ?practice there.