SOLICITORS DISCIPLINARY TRIBUNAL

IN THE MATTER OF THE SOLICITORS ACT 1974 Case No. 11664-2017

BETWEEN:

SOLICITORS REGULATION AUTHORITY Applicant

and

MALIK MOHAMMED NAZEER First Respondent

MALIK MOHAMMED SALEEM Second Respondent

______________________________________________

Before:

Mrs J. Martineau (in the chair)

Mr P. Lewis

Mr R. Slack

Date of Hearing: 27 November – 1 December 2017

______________________________________________

Appearances

Rory Dunlop, barrister of 39 Essex Chambers, 81 Chancery Lane, London WC2A 1DD,

instructed by Kate Steele, solicitor of Capsticks Solicitors LLP, 1 St George`s Road,

Wimbledon, London, SW19 4DR, for the Applicant.

Samantha Broadfoot QC, barrister of Landmark Chambers, 180 Fleet Street, London

EC4A 2HG and Billal Malik, barrister of Erimus Chambers, Hamilton House,

1 Temple Avenue, London EC4Y 0HA, instructed by Malik and Malik Ltd,

234-236 High Rd, London NW10 2NX for both Respondents.

______________________________________________

JUDGMENT

______________________________________________

The Tribunal’s Order against the First Respondent only is subject to appeal to the High Court

(Administrative Court) by the First Respondent. The Order remains in force pending the High Court’s decision

on the appeal. The Solicitors Disciplinary Tribunal has not been notified of an appeal by the Second Respondent.

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Allegations

1. The Allegations made against both Respondents by the SRA were that:

1.1 Between around January 2014 and December 2015, they facilitated the abuse of

litigation by bringing or facilitating judicial review claims on behalf of clients,

including Clients 7-9, in circumstances where they knew or should have known that

the claim was not properly arguable and its true purpose was to thwart and/or delay

lawful removal and/or procure release from lawful detention. This was a breach of

any or all of Principles 1, 2, and 6 of the SRA Principles 2011 and a failure to achieve

Outcome 5.6 of the SRA Code of Conduct 2011.

1.2 Between around January 2014 and December 2015, they deliberately or recklessly

failed to warn Clients 1-6 that any claims they brought would be bound to fail and/or

out of time, thereby breaching any or all of Principles 2, 4, 5 and 6 of the

SRA Principles 2011.

1.3 Between around January 2014 and December 2015, they offered an unbundled service

only to clients with claims they knew to be very weak and/or unarguable, and/or

sought to conceal their involvement in the drafting of clients’ claims in order to shield

their firm from criticism, in breach of any or all of Principles 2, 4 and 6 of the

SRA Principles 2011 and thereby failing to achieve Outcomes 1.1, 1.2 and/or 1.5 of

the SRA Code of Conduct 2011.

1.4 Between around January 2014 and December 2015, they breached their professional

obligations to the Upper Tribunal not to make submissions that they did not consider

were properly arguable, thereby breaching any or all of Principles 1, 2 and 6 of the

SRA Principles 2011 and failing to achieve Outcome 5.6 of the SRA Code of Conduct

2011.

1.5 Allegations 1.1 to 1.4 were pleaded on the basis that the Respondents knew or

recklessly disregarded the fact that at least some of the totally without merit claims

they brought or facilitated were not properly arguable and/or out of time. In the

alternative, if they considered that all or any of those claims were properly arguable

and failed to notice that the claims for Clients 3, 5 and 6 were out of time, that would

demonstrate manifest incompetence in breach of any or all of Principles 1, 5 and 6 of

the SRA Principles 2011 and thereby failing to achieve any or all of Outcomes 1.2,

1.4 and 1.5 of the SRA Code of Conduct 2011.

1.6 Between around January 2014 and August 2016, they failed to take reasonable steps

to protect, keep confidential and provide to the SRA client files which were requested

by the SRA, thereby breaching any or all of Principles 7, 8 and 10 of the

SRA Principles 2011.

2. The Allegation made against the Second Respondent alone was that:

2.1 Between around January 2014 and December 2015, he failed adequately to supervise

Person A, an employee of the Firm, in breach of any or all of Principles 6 and 8 of the

SRA Principles 2011 and thereby failed to achieve any or all of Outcomes 7.6, 7.7 and

7.8 of the SRA Code of Conduct 2011.

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Documents

3. The Tribunal considered all of the documents in this matter including:

Applicant

Application and Rule 7 Statement (incorporating Rule 5 Statement dated

16 June 2017) with exhibit KAS/1 dated 3 August 2017

Applicant’s hearing bundle including witness statements and exhibits

Authorities bundle

Opening Note

Cost Schedule

Respondents

Respondent’s hearing bundle including witness statements and exhibits.

Authorities bundle

Skeleton Argument

Closing Submissions

Factual Background

Background to the Allegations

4. The First Respondent was born in June 1971, and was admitted to the roll on

15 August 1997. The Second Respondent was born in October 1964, and was

admitted to the roll on 2 April 1997. At the time of the hearing each Respondent held

a current practicing certificate free from conditions. In a letter dated 17 August 2015

the Chief Operating Officer of UK Visas and Immigration, Mike Wells had written to

the Applicant expressing concern about certain firms of solicitors that had made

disproportionately high numbers of claims for Judicial Review (“JR”) which had been

certified as being ‘totally without merit’ (“TWM”) in immigration and asylum claims.

5. The Home Office had informed the Applicant that the Firm had submitted 35 cases

between 17 April 2014 and 3 July 2015 which were certified as TWM.

6. At the material time it was the usual policy of the Home Office, subject to some

exceptions, to defer removal directions when the subject made a claim for JR. The

Applicant’s case was that the effect of bringing a claim for JR, even if the claim was

without merit, was that it could prevent a claimant from being removed until their

claim for JR was determined.

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7. One of the potential reasons for detaining someone under immigration powers was

that their removal was ‘imminent’. However, the Applicant’s case was that if a

person who had been detained pending imminent removal brought a claim for JR, that

would often mean that their removal was no longer ‘imminent’. As a result, bringing a

claim for JR could often result in a claimant’s release from immigration detention,

even when their claim was without merit. In many cases it would not matter if the JR

claim was rejected because, by the time it had been decided, the removal would have

been cancelled and the claimant released. This analysis was not wholly accepted by

the Respondents.

8. On 5 April 2016 the SRA had commenced an investigation into the Firm. An

investigating officer attended the Firm’s offices to inspect the files for the 35 cases

identified by the Home Office. He was able to review 10 files in relation to the

35 cases. The Firm acted for six of these 10 clients. In the other four cases, the Firm

did not go on the record but instead provided an ‘unbundled service’ to clients who

acted as litigants in person (“LIP”).

9. In a letter dated 4 August 2016 the SRA had requested further information on the files

for Clients 1-6. In a letter dated 11 August 2016 the Respondents stated that the files

had been disposed of by the cleaner after having been left on top of a bin. In a letter

dated 25 August 2016 the Respondents said they would send the reconstituted files to

the SRA. The files were received by the SRA shortly thereafter. On 30 August 2016

the Firm had reported itself to the Information Commissioner.

10. Client 1

10.1 Client 1 was a failed asylum seeker who had lived unlawfully in the UK from

4 February 2002. He had applied for Leave to Remain (“LTR”) on the basis of

Article 8 of the European Convention of Human Rights (“ECHR”) and his private life

in the UK on several occasions. His submissions had been rejected in 2012 and again

in August 2014.

10.2 On 31 October 2014 Client 1 brought a JR of the Home Office’s decision of

August 2014. The statement of facts and grounds was drafted by Person A, an

employee of the Firm, under the supervision of the Second Respondent. In

paragraph 2, it had been submitted that “since the last consideration of the Claimants

[sic] case in 2002 [sic] there has been a considerable change in both the Claimants

[sic] circumstances and in the approach of case law.” Client 1’s statement of facts

and grounds asserted that Client 1 had substantial family life in the UK, but Client 1

had not provided the Home Office with any evidence that he had any family life in the

UK.

10.3 On 11 June 2015 Upper Tribunal Judge (“UTJ”) Eshun refused permission and

certified the claim as TWM, noting that the claimed family life had not been

particularised.

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11. Client 2

11.1 Client 2 was a failed asylum seeker who had lived unlawfully in the UK from around

2000. Following the refusal of his claim for asylum he had been served with notice of

decision to remove him as an illegal entrant. He appealed and his appeal had been

dismissed on 12 June 2000. On 11 September 2001 Client 2 had applied for LTR on

the basis that his removal would breach his human rights. This application was

refused and the appeal dismissed and on 10 October 2002 his appeal rights were

exhausted.

11.2 In 2005 Client 2 had been placed on weekly reporting conditions. He failed to

comply and remained out of contact with the Home Office until he was arrested for a

criminal offence. On 27 February 2014 the Firm made representations on his behalf,

seeking LTR on the basis of Article 8 of the ECHR and his private life. In a decision

letter dated 9 May 2014, but served on 5 February 2015, the Home Office had

rejected those submissions and refused to treat them as a fresh claim.

11.3 On 5 February 2015 Client 2 brought a JR of that decision. The statement of facts and

grounds were again drafted by Person A. Paragraph 2, contained similar phrasing to

Client 1’s JR claim.

11.4 There was a record of advice being given to Client 2 on 20 March 2015, 6 May 2015

and 25 August 2015. However, the SRA had found no record of the Firm advising

Client 2 as to his prospects of success.

11.5 On 24 August 2015 UTJ Coker refused permission and certified the claim as TWM.

UTJ Coker recorded that “contrary to the undertaking given by the senior partner of

[the Firm] to the Tribunal, the application form, although purporting not to have been

completed by solicitors, gives the solicitors’ address and not the applicant’s address”.

UTJ Coker noted that the claim that the Home Office had failed to consider the

evidence put forward by Client 2 was “unparticularised” and that it was clear that the

Secretary of State had considered the relevant evidence.

12. Client 3

12.1 Client 3 was an illegal entrant who claimed that he had arrived in the UK in 2000. On

26 November 2010 he had applied for LTR on the basis of his private life in the UK.

On 29 December 2010 he was refused LTR as he had provided no evidence of family

life, he was an illegal entrant, had no proof of when he arrived in the UK and had

worked illegally using a false name. On 5 November 2012 Client 3 made a further

application for LTR, again on the basis of his private life in the UK. On

29 October 2013, the Home Office rejected the application because he did not meet

the requirements of paragraph 276ADE of the Immigration Rules and there were no

exceptional circumstances which might warrant a grant of LTR. The decision

informed Client 3 that enforcement action would be taken against him should he fail

to leave the UK. On 13 February 2014 the Firm wrote a letter before action on Client

3’s behalf. The Home Office replied on 28 April 2014 stating that the claim was

unarguable and out of time.

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12.2 An Attendance Note dated 20 June 2014 recorded that the Second Respondent

advised Client 3 that his case had “less than reasonable prospects and therefore we

would not be able to act for you in respect of a Judicial Review application” but that

the Firm could “advise and assist… with respect to procedural requirements and/or

drafting”. The Attendance Note did not refer to the three-month time limit for

JR applications. An internal checklist dated 20 June 2014 had been completed by the

Second Respondent. Under the heading ‘Whether JR is in time’, the box saying ‘No’

was ticked.

12.3 The checklist contained five boxes under ‘Merits’: ‘Very good’, ‘good’, ‘moderate’,

‘borderline’ and ‘unclear’. The Second Respondent had ticked the ‘unclear’ box and

had added in manuscript “out of time and lack of merits”. He also ticked the box

saying ‘Explained to the client on an initial perusal we anticipate to proceed on an LIP

basis’.

12.4 An Attendance Note dated 22 July 2014 recorded that the Second Respondent had

advised Client 3 on the grounds on which a claim for judicial review may be brought

and had “prepared a chronology of events”. The Attendance Note did not refer to

providing Client 3 with a draft statement of facts and grounds. It recorded that Client

3 was advised that “it is unlikely a Judge would find that the grounds are

substantiated”.

12.5 In a response to a s.44B notice, dated 23 May 2017, the Respondents confirmed that

Client 3’s statement of facts and grounds had been drafted by Person A.

12.6 On 25 July 2014 Client 3 applied for JR. On 10 April 2015 UTJ Kekic refused

permission on the grounds that the claim was out of time and certified the claim as

TWM. The Firm made another application for LTR on Client 3’s behalf. This was

refused in a letter dated 26 November 2015 and Client 3 was detained pending

removal. On 2 December 2015 Client 3 filed another claim for JR, following which

he was released from detention.

13. Client 4

13.1 Client 4 was a Pakistani national who claimed he had arrived in the UK on

7 April 1998. On 6 May 1998 he had applied for asylum. His claim was refused and

his appeal dismissed on 27 August 1999. Letters were sent to him on a number of

occasions requiring him to report but he failed to do so. He remained undetected

until 2006 when he was detained. On 2 May 2006 Client 4 made an application for

LTR on the basis that his removal would breach his human rights. This application

was refused and the appeal dismissed on 13 June 2006 and his appeal rights were

exhausted on 22 December 2006.

13.2 On 15 November 2012 Client 4 applied for LTR on the basis of his private and family

life. On 24 June 2013 the Home Office refused that application. Client 4 applied for

JR of that decision and permission was refused on 22 November 2013 on the basis

that the claim was not arguable. On 12 May 2014 Client 4 made further submissions

against his removal. Those submissions were refused in a decision dated

15 May 2014.

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13.3 In a letter dated 14 July 2014 the Firm made further representations on Client 4’s

behalf, seeking LTR on the basis of Article 8 of the ECHR and his private life. On

19 November 2014 the Home Office rejected those submissions and refused to treat

them as a fresh claim. The Home Office noted that Client 4 did not meet the

requirements of paragraph 276ADE of the Immigration Rules and there were no

exceptional circumstances which would require a grant of LTR under Article 8. The

Home Office specifically considered the factors in paragraph 353B of the

Immigration Rules and Chapter 53.1.1 of the EIG and noted that although Client 4

had resided in the UK for 16 years and 7 months that was mostly the result of his

absconding from the immigration authorities and failing to maintain contact.

13.4 On 12 January 2015 Client 4 brought a JR of that decision. Person A drafted

Client 4’s statement of facts and grounds. On 13 July 2015 UTJ Kekic refused

permission and certified the claim as TWM.

14. Client 5

14.1 Client 5 was from Government Controlled Iraq (“GCI”). He had arrived in the UK on

9 February 2002 and claimed asylum. From at least 2002 until 20 February 2003, it

was Home Office policy to grant 4 years LTR to asylum seekers from GCI if and

when their asylum claim was refused. That policy was amended on 20 February 2003

so that failed asylum seekers from GCI only received 6 months LTR. The policy was

abandoned on 16 June 2003 and, after that date, failed asylum seekers from GCI were

not granted LTR simply because of where they were from. Client 5’s asylum claim

was determined and refused on 31 July 2013, after the policy to grant LTR to failed

asylum seekers from GCI, had been abandoned. Accordingly, he was not granted

LTR.

14.2 Client 5 appealed against the refusal of his asylum claim and his appeal was dismissed

on 15 September 2004. On 26 June 2010 Client 5 made further submissions as to

why he should not be required to leave the UK. On 18 November 2011 Client 5 was

granted 3 years discretionary LTR, which was to expire on 17 November 2014,

pursuant to the policy in force at the time of the decision. It was open to Client 5 to

have applied to extend his LTR shortly before it was due to expire.

14.3 In a letter before action dated 4 July 2014 the Firm wrote to the Home Office on

Client 5’s behalf alleging that he had suffered ‘historic injustice’ and should have

been granted Indefinite Leave to Remain (“ILR”). It was argued that he had a

legitimate expectation that his claim of June 2010 would be dealt with by July 2011

and, if it had been, he would have been granted ILR instead of discretionary LTR.

14.4 In a letter dated 23 July 2014 the Home Office replied, stating that Client 5’s claim

was out of time and without merit. The letter drew attention to the case of

R (Geraldo) v Secretary of State for the Home Department [2013] EWHC 2703

(Admin) which had decided the point Client 5 was raising. In Geraldo, King J had

found the Secretary of State had not made any clear and unambiguous promise that

the Case Resolution Directorate (“CRD”) would conclude its decision making by July

2011 and recipients of discretionary LTR after July 2011 would not have grounds to

complain that they should have been granted ILR.

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14.5 An Attendance Note dated 7 August 2014 recorded that the Second Respondent had

advised Client 5 that he may have suffered historic injustice and been deprived of ILR

because his case was not considered as part of the legacy program. Client 5 was

advised that his case had “less than reasonable prospects given the current case law

and the judicial view on legacy cases. Therefore we would not be able to act for you

in respect of a Judicial Review application” but the Firm could “advise and assist…

with respect to procedural requirements and/or drafting”. The attendance note did not

mention the three month time limit for JR.

14.6 In an Attendance note dated 11 August 2014 the Second Respondent was recorded as

having “prepared a chronology of events”, “discussed the grounds upon which

judicial review could be brought” and that he had advised and assisted on

“Completion of Form T480” and “The relevant case law”.

14.7 On 13 August 2014 Client 5 filed a JR claim and a statement of facts and grounds

challenging the decision of 18 November 2011. In a letter dated 23 May 2017, in

response to a s.44B notice, the Respondents confirmed that the Second Respondent

drafted the statement of facts and grounds. The statement of facts and grounds

acknowledged that it was out of time to challenge the decision of 18 November 2011

but said Client 5 had “hoped to avoid litigation and incur cost [sic]”.

14.8 The statement of facts and grounds raised two grounds to challenge the decision. The

first was that Client 5 fell under the category of legacy and that he therefore had a

legitimate expectation that his case would have been concluded by July 2011. The

second was that he had suffered “conspicuous unfairness” because of the failure to

grant ILR as an Iraqi national. The Home Office filed an acknowledgment of service

in which they stated that the claim was late and without merit.

14.9 Client 5 sought advice from the Firm and in a letter dated 7 October 2014 Person A

advised Client 5 that the case law following Geraldo was against him and the claim

was out of time and permission could be refused on that basis. On 23 April 2015 UTJ

Kekic refused permission and certified the claim as TWM. UTJ Kekic pointed out

that the grounds “raise the same issues that were considered in detail and

comprehensively rejected in the long line of cases addressing the legacy programme”.

15. Client 6

15.1 Client 6 was a citizen of India who had entered the UK illegally. On 13 January 2014

the Firm had applied on Client 6’s behalf for LTR on the basis of Article 8 of the

ECHR and his private life. The application stated that he had arrived in the UK in

1993 but the only evidence he produced to substantiate this claim was a letter dated

15 November 2013 from a Gurdwara stating that he had been attending there since

January 1997.

15.2 In a decision letter dated 7 April 2014, the Home Office refused Client 6’s

application. The Home Office did not accept that Client 6 had been in the UK for

over 20 years. The refusal letter decided that returning Client 6 to India would not

breach his rights under Article 8.

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15.3 An Attendance Note dated 20 June 2014 recorded that the Second Respondent

advised Client 6 that his case had “less than reasonable prospects” and so the Firm

could not act for him but it could “advise and assist… with respect to procedural

requirements and/or drafting”.

15.4 On 24 July 2014 Client 6 filed a JR and a statement of facts and grounds challenging

the decision of 7 April 2014. In the letter dated 23 May 2017, the Respondents had

confirmed that Person A drafted the statement of facts and grounds.

15.5 On 10 March 2015 Deputy UTJ Kovats QC refused permission on the grounds that

the claim was out of time and certified the claim as TWM, commenting that neither of

the grounds was “remotely arguable”.

16. Client 7

16.1 Client 7 was an Algerian national who had a multi-visit visa valid from 16 May 2014

to 16 November 2014. She had entered the UK on 27 September 2014 and

overstayed. Client 7 was detained under immigration powers pending removal when

it became apparent that she was an illegal overstayer. In detention, Client 7 was

asked on two occasions if she wanted to claim asylum. On neither occasion did she

say ‘yes’. Directions were set for Client 7’s removal to Algeria on 20 April 2015.

16.2 On 15 April 2015 Client 7 had a telephone conversation with a solicitor from the Firm

in which she said that she did not want to return to Algeria as she was in a relationship

with a British citizen, Person B. The solicitor advised her that she did not qualify for

LTR under the Rules and that, although she could apply for LTR outside the Rules

based on her relationship, the merits of the application were “low”. Client 7

instructed the Firm to proceed.

16.3 In a letter dated 17 April 2015 the Firm applied for LTR in reliance on her

relationship with Person B, submitting that removing her would breach her rights

under Article 8 of the ECHR. The Home Office was sent a statement, which

purported to be from Person B but which was typed and unsigned.

16.4 The statements claimed that Client 7 and Person B met in November 2014 and were

married in a religious marriage in December 2014 and moved in together in

January 2015. No supporting evidence of cohabitation was provided. A tenancy

agreement was provided but it only referred to Person B, not Client 7. In her

statement Client 7 asserted that her life in Algeria would be “extremely difficult” and

she would be “destitute” as she had been disowned by her family who disapproved of

her marriage.

16.5 In a letter dated 5 May 2015 the Home Office refused Client 7’s application for LTR

and certified her Article 8 human rights claim as clearly unfounded, with the result

that she had no right of appeal in the UK. Directions were re-set for Client 7’s

removal on 18 May 2015.

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16.6 On 5 May 2015 the Firm advised Client 7 that there were “low merits” in submitting a

JR of the decision but they could advise and assist with drafting. On 7 May 2015

Client 7 filed a JR claim form and statement of facts and grounds. Client 7’s planned

removal on 18 May 2015 was cancelled.

16.7 On 16 June 2015, Silber J refused permission and certified the claim as TWM.

17. Client 8

17.1 Client 8 was an Albanian national who entered the UK clandestinely and, on

7 April 2015 attended a police station and claimed asylum, saying that he wanted to

bring his family to the UK so that they could claim benefits. He stated Client 8 was

interviewed and said that his father had been killed and his family wanted him to take

revenge on the person responsible but that he did not wish to do so. Client 8 was

detained, pending removal, while his asylum claim was considered.

17.2 On 29 April 2015 Client 8’s asylum claim was refused and certified as clearly

unfounded. His solicitors (not the Firm at this time) made further representations

against removal relying on new evidence. Those representations were refused in a

letter dated 1 May 2015 and directions were set for Client 8’s removal on

15 May 2015. Client 8 submitted his own representations against removal and

removal was deferred. His representations were rejected in a decision dated

18 May 2015 and directions were re-set for his removal on 21 May 2015.

17.3 Client 8 telephoned the Firm on 19 May 2015. A telephone attendance note dated

19 May 2015 recorded the Firm advising Client 8 that there were “low merits” in

submitting a claim for JR. Client 8 confirmed he wanted to proceed. On

20 May 2015 Client 8 filed a claim form and statement of facts and grounds. The

directions for removal were cancelled.

17.4 On 11 June 2015 UTJ Lane refused permission and certified the claim as TWM. In

doing so he stated:

“The application is bound to fail. The respondent’s decision letter was careful

and thorough. Even taking the international protection claim at its highest

(ignoring the candid statement of the applicant, on being apprehended, that he

was here because [he] wished to bring his family to claim benefits), the claim

is hopeless. There is no evidence of any materially adverse interest on the part

of anyone in Albania (and in any event internal relocation is manifestly

reasonable in the circumstances). Since the applicant is supposed to be the

person to avenge his father’s death and he has no intention of doing so, there is

no risk of matters changing. There is plainly no Article 8 case that could

rationally succeed.”

17.5 A telephone attendance note dated 18 June 2015 recorded that the Firm advised

Client 8 that his chances of appealing UTJ Lane’s decision were low. Client 8 said he

had more evidence, in the form of a letter from his mother, his father’s death

certificate and a letter from community leaders. The Firm agreed to make further

representations against removal based on this new evidence and did so in a letter

dated 19 June 2015. The Home Office rejected these further representations in a letter

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dated 30 June 2015, as they did not create a realistic prospect of success. Client 8

filed a further claim for JR on or before 24 July 2015. In a letter dated 24 July 2015

the Firm wrote to the Home Office arguing that Client 8 should be released from

detention as he had lodged a claim for JR and so his removal was no longer imminent.

18. Client 9

18.1 Client 9 was a Kosovan national. He had entered the UK on 27 February 1999 and

claimed asylum using a false name. This claim was refused and Client 9 appealed.

His appeal was dismissed on 23 April 2002. Client 9 remained in the UK illegally

until he was encountered by police, on 10 August 2005, and removed to Kosovo.

18.2 On 6 January 2006 Client 9 returned illegally, again using a false name, and applied

for LTR based on Article 8. This application was refused and Client 9 returned to

Kosovo.

18.3 In February 2015 Client 9 was arrested attempting to board a ferry from

Northern Ireland to Scotland. He and his partner were in possession of a counterfeit

Bulgarian passport and national identity card. He was detained pending removal. On

2 March 2015 he informed the Home Office that he would return voluntarily to

Kosovo if it paid for the ticket.

18.4 On 20 March 2015 IM, a fee earner for the Firm, met Client 9 in detention and

discussed claiming asylum. Client 9 told IM that he had been attacked by his

partner’s family who wanted her to marry someone else. On 23 March 2015

directions were set for Client 9’s removal to Kosovo. On 25 March 2015, the Firm

made a claim for asylum on Client 9’s behalf. The removal directions were cancelled,

as a result, and Client 9 was interviewed. In his interview, Client 9 had said that he

feared his partner’s uncle who had arranged for him to be attacked in the past. He

said he had reported it to the police who did not assist but told him to find another

partner.

18.5 An Attendance Note dated 17 April 2015 recorded that Client 9 was advised that the

merits of his case were low for a number of reasons, for example the fact he could

access protection from the state or move to another area. On 22 April 2015 Client 9’s

claim for asylum was refused and certified as clearly unfounded. A telephone

Attendance Note dated 24 April 2015 recorded Client 9 being advised that the merits

of a challenge to the decision were low. An attendance note dated 27 April 2015

recorded the Firm advising Client 9 that “there are insufficient merits to proceed with

an application for Judicial Review” but they could “advise and assist him on the

same”.

18.6 On 30 April 2015 Client 9 filed a JR. Client 9’s removal was cancelled. On

15 June 2015 UTJ Rintoul refused permission and certified the claim as totally

without merit. He stated that “The grounds of application are, in reality, just a

disagreement with the respondent’s conclusions. They do not properly engage with

the considerations of availability of protection or internal relocation…I consider that

the material provided gives rise to no reasonable prospect of success whatsoever in

any further judicial review.”

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Witnesses

19. Cary Whitmarsh (Forensic Investigation Officer)

19.1 Mr Whitmarsh confirmed that the content of his Forensic Investigation Report was

correct. He had been an Investigation Officer since 2003 and he confirmed that he

was neither a lawyer nor a specialist in immigration law. He understood that if a JR

was successful that meant the case would have to go back to the Home Office for a

fresh decision. The Home Office could make the same decision again providing it was

done lawfully. In some cases the Home Office agreed to reassess the decision before,

or indeed after, permission was granted. Mr Whitmarsh agreed that in a situation

where there was a reassessment and therefore the JR was withdrawn, this could be

seen as a success.

19.2 Mr Whitmarsh confirmed that he had initially examined seven randomly selected files

during his visit to the Firm. Of those seven, permission was refused in two, there was

an oral renewal of an application for permission in one and four were awaiting

reassessment. None of the seven were certified as TWM.

19.3 Mr Whitmarsh had understood that there were 35 files identified by the Home Office

as having been certified as TWM. He had examined 10 of these files and found that

only two were in fact certified as TWM. This raised concerns as to the accuracy and

reliability of the information received from the Home Office. Mr Whitmarsh’s

colleagues sought an explanation from the Home Office but this did not assist.

19.4 Mr Whitmarsh accepted that unbundling was permissible in principle, including in the

area of immigration law. He agreed that this was about the flexible provision of

services and issues of affordability. It was therefore possible that a solicitor could

provide some services and not others. It was necessary however to make clear what

the solicitor would be doing and what the client would be doing. A solicitor should be

prepared to offer an unbundled service in cases where there were high chances of

success as well as those where there were low prospects. Mr Whitmarsh was shown

letters from the Firm dated 25 November 2014 in relation to client 6, 29 August 2014

in relation to client 3 and 20 March 2015 in relation to Client 5. He agreed that

anyone looking at these letters would know that the Firm was involved in advising

and assisting and that there was no evidence of concealment of the Firm’s

involvement contained in those letters.

19.5 Mr Whitmarsh confirmed that of the exemplified matters before the Tribunal he had

reviewed the files of the Clients 3 and 6. The files for Clients 1, 2, 4 and 5 had been

available at the time of his first visit and he had not reviewed them. They had

subsequently been disposed of in error (see Allegation 1.6). He agreed that the fact

that a case was certified as TWM did not necessarily mean that it was abusive.

20. Andrew Bennett (Home Office)

20.1 Mr Bennett confirmed that his witness statements were true to the best of his

knowledge and belief.

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20.2 Mr Bennett was cross-examined extensively about the data produced by his team. He

agreed that the data bracketed TWM in the same category as cases where a direction

had been made that any renewal of application for permission at an oral hearing

should be no bar to removal. They were under the same broad heading of cases

lacking in merit and they told the Home Office that it could proceed with removal.

The concept of TWM had only been introduced on 1 November 2013 and Mr Bennett

agreed that it was therefore not surprising that there was an increase as it was a new

procedural tool. Mr Bennett denied that the figures had been massaged to give a

different impression to the reality of the position. It was put to Mr Bennett, by

reference to examples contained within the data that reliance could not be placed on

the figures as they were no more than a starting point. Mr Bennett stated that they

were a good indicator in terms of relativity of the number of claims that were certified

as TWM but accepted they were not precise in terms of actual numbers. It was put to

him that the table he had produced had been in response to the Firm’s assertion that

their statistics were not that bad and he had done so in order to try to justify

identifying the Firm as the worst offender. Mr Bennett denied this and told the

Tribunal that the numbers were what they were and his aim had been to give context

to them.

21. Professor Thomas, Professor of Public Law, University of Manchester

21.1 Professor Thomas confirmed that his expert report dated 10 November 2017 was true

to the best of his knowledge and belief.

21.2 Professor Thomas agreed that before the introduction of TWM in 2013 anyone who

applied for JR and was refused permission on the papers had a right to an oral renewal

hearing. This generally remained the case at present. Unless there was the contrary

order from the court, before 2013 if a JR was issued this would delay a person’s

removal, not just until the paper decision had been made but also until any oral

renewal hearing had taken place. One method that had been implemented before

TWM to limit the number of what were perceived to be abusive claims was an order

that renewal (of application for permission) should be no bar to removal. This meant

that the Home Office could proceed with removal even if a person applied for an oral

renewal hearing.

21.3 The effect of a certification of TWM was the removal of the right to an oral renewal

hearing. Professor Thomas agreed that such a certification, or indeed an order that

renewal should be no bar to removal should only be made if the case was so weak as

not to justify an oral hearing. It did not simply mean that the case was unarguable.

Professor Thomas confirmed that he had argued in his report that while the decision to

certify was one of judicial discretion it depended not just on the merits of the claim

but on external factors including the court’s caseload. If a judge knows that a court is

struggling with workload then he or she, consciously or unconsciously, may be more

inclined to certify a case as TWM.

21.4 Professor Thomas was asked a number of questions about the interpretation of the

data. He pointed out that the Home Office and the Ministry of Justice collected data in

different ways.

14

22. First Respondent

22.1 The First Respondent confirmed that the contents of his witness statement were true

to the best of his knowledge and belief. At the start of his evidence he clarified a

number of matters. He told the Tribunal that he dealt with the management and

administration side of the Firm and in addition he was the COLP and COFA. In

addition to the day-to-day running of the Firm he managed the criminal department.

Immigration work amounted to 80% of the Firm’s work. Within the Immigration

department were four sub-departments which were managed by the

Second Respondent. He was supported by 15 to 16 staff including five qualified

lawyers.

22.2 The First Respondent was referred to Madan and Kapoor v Secretary of State for the

Home Department [2007] EWCA Civ 770 in which the Court of Appeal had made

criticisms of the Firm. The First Respondent told the Tribunal that the

Second Respondent had been dealing with that case and that if he had become aware

of any criticism arising from it that affected the Firm’s reputation he would have been

concerned about it and would have spoken to the Second Respondent. He spoke to the

Second Respondent daily and he recalled him telling him about this case. The court

had set out guidance for future cases which the First Respondent believed was a

positive not negative input. It was put to him that at [14] the Court described the

matters as being “conducted unsatisfactorily” and that this should have been a

warning to the Firm. The First Respondent stated that this was one line in the

judgment which had been taken out of context and had to be read in conjunction with

the totality of the judgment. If any particular issue of concern had been raised he

would have taken action. The First Respondent trusted what the Second Respondent

had told him and did not believe that anything needed to change.

22.3 It was put to the First Respondent that in R (Patel) v Secretary of State for the Home

Department [2014] EWHC 264 the Firm had again been criticised. This had been the

Firm’s third appearance before a ‘Hamid Court’ – a hearing listed following the case

of R (Hamid) v Secretary of State for the Home Department [2012] EWHC 3070

(Admin) at which the Court required the attendance of the solicitors and senior

partners from a firm where there had been non-compliance with the information

required or a failure to provide reasons for the urgency of an application. The First

Respondent agreed that a Hamid hearing would occur when the court was concerned

about an abuse of process. He was asked whether the comments in Patel rang alarm

bells. The First Respondent stated that whatever guidance was given by the court had

been taken into consideration but that nothing else had been said about the Firm.

22.4 It was put to the First Respondent that one example of an abusive claim would be

when it was lodged at the last minute in a bid to prevent removal and had no merit.

The First Respondent rejected this analysis and gave the example of a solicitor who

sought a housing injunction to prevent an eviction, which would not be an abuse. The

Firm had a duty to represent its clients to the best of its abilities and it was a matter of

judgement for each individual solicitor as to what was best for each client under their

particular circumstances. The First Respondent was asked if he was stating that it was

acceptable to submit a claim that prevents removal if had no merit. He stated that this

was not his position, every case was different and the legal basis had to be looked at

in each case.

15

22.5 It was put to the First Respondent that in order to avoid a further referral to a Hamid

court, the Firm had decided to come off the record, or not go on it in the first place, in

weak or unwinnable cases. The First Respondent denied this and stated that in 2012

they had been audited by the SRA. Furthermore they had been doing LIP work since

the Firm started and so this practice was not new. The First Respondent rejected the

suggestion that the Firm would offer unbundled only services in weak cases. The

policy was to assess each case on its merits.

22.6 It was put to the First Respondent that his letters to the SRA had made no reference to

the 20% prospects threshold below which the Respondents had stated that the Firm

would not draft grounds. The First Respondent referred the Tribunal to the

Second Respondent on that matter. He was aware there was a concept of a 20%

threshold and remembered speaking to the Second Respondent about this. The

concept stemmed from the days when the Firm did legal aid and there was a 50%

threshold for taking those cases. It was put to the First Respondent that he did not

really know which thresholds were being applied to which he responded that he

generally did know that each case had to be assessed. He was aware that there was a

policy in the Immigration department of the 20% threshold but this was only guidance

for staff. The First Respondent accepted that following the service of the section 44B

notice that neither he nor the Second Respondent had made an attempt to find a record

of clients turned away because their prospects were below 20%.

22.7 The First Respondent was asked about the files that were disposed of relating to

Clients 1-6. He agreed that it was important to protect files that were being examined.

He was asked what steps he had taken to ensure that members of his staff were aware

of this. He told the Tribunal that there was a duty of care to protect all files and that he

had reported the incident to the SRA and the Information Commissioner.

22.8 The Tribunal asked the First Respondent to describe his role as the COLP. He stated

that he was responsible for ensuring that the duty of confidentiality was maintained,

all the principles were adhered to and that there was effective practice in place. If any

breaches occurred, he was under a duty to notify the SRA. He was asked how he

would check that the supervisor was doing his job. He explained that this was done

through the file management process, and the quality level was protected by the fee

earner’s level of qualification, the existence of professional indemnity insurance,

Continuing Professional Development and internal training. He told the Tribunal that

the Second Respondent appraises trainees on a daily basis. There was a file review

folder that recorded this.

23. Second Respondent

23.1 The Second Respondent confirmed that his witness statement was true to the best of

his knowledge and belief. He confirmed that he was the partner responsible for

immigration work at the Firm and that there were four sub-departments within that

department.

23.2 The Second Respondent confirmed that he had drafted the grounds in the case of

Client 5 and that Person A had been responsible for drafting the grounds for

Clients 1-4 and 6-9. He was aware of the criticism in Patel and had taken note of the

warning that the Firm might not survive another Hamid hearing. It was put to him that

16

in response the Firm had never gone on record in unwinnable cases. The Second

Respondent denied this. The Hamid principles had addressed the issue of late

applications, meritless applications and breach of the duty of candour. There was a

duty to tell the courts why you had left it until the last day to lodge a JR and this

explanation required a detailed account of when the Firm was instructed, when it

received the relevant documents and when you decided to lodge the JR. If there was a

good explanation then it would be acceptable to lodge it providing you complied with

your other duties. The question of merit meant that there was nothing wrong with

weak arguments and that, where you are seeking an injunction to prevent a flight

taking off, then you are under a duty to tell the court why you believe there are legal

arguments in pursuing a weak case. There was a duty to draw to attention to the court

any parts of the client’s case that were negative. The duty was to act in the client’s

best interests but not to put forward facts that did not exist or were improper,

inaccurate or misleading.

23.3 It was put to the Second Respondent that one example of a case lacking in merit

would be a factual assertion which was wrong and another example would be making

a submission of law that was not properly arguable. The Second Respondent replied

that was so if it was clear cut that the JR should not be lodged but, if it was not clear

cut and there was an argument to be made, that the Firm should do it. The

Second Respondent denied that Patel had been abusive. He did agree that the claim

was wholly unmeritorious.

23.4 The Second Respondent told the Tribunal that there was a 20% threshold for taking

on claims and below 20% the Firm would not act or deal with it at all, including

assisting a LIP. When a new client came into the office, the Second Respondent

would see them initially; they would explain their circumstances and go through the

decision letter with him and seek his advice. He would advise them as to the Firm’s

fees and their prospects of success. If the prospective clients did not like the advice

that he gave them, for example if he told them that the case had no merit, they would

not instruct him. Some of the potential clients were facing imminent removal and

were reluctant to leave copies of documents with the Firm if the Firm was not going

to deal with the case. The Second Respondent always provided honest advice, which

clients sometimes did not wish to hear. It was put to the Second Respondent that he

would accept instructions from anyone and where the merits were low he would act

on the LIP basis. An example of this was reflected in the standard checklist which had

been completed in respect of Client 3 which did not include an option of telling the

client that the Firm could not act. The Second Respondent accepted that the form did

not contain such a box but denied that this was the reason. The form was not filled in

until the Firm had accepted that there was some merit in the JR. If there were no

merits the form would not be completed. In the case of Client 3 the box ticked had

been ‘unclear’ for various reasons. The booklet containing the checklist was only used

for short periods of time and its use was stopped as it was “not making much sense”.

23.5 It was put to the Second Respondent that he had been cagey with the SRA in

confirming who had drafted the grounds in respect of Clients 7 to 9. The Second

Respondent denied this. He accepted that his responses to the SRA could have been

drafted better but denied attempting to be misleading. He had not fully appreciated

that he was being asked about who had drafted the grounds.

17

23.6 Client 1 - The Second Respondent accepted that Person A should have done a better

job of drafting the facts. The legal points he had raised were sufficient to make the

case arguable however. The Second Respondent accepted that the grounds should

have referred to the client’s private life rather than a family life.

23.7 It was put to the Second Respondent that this case never had a 20% chance of success

in part due to the generic nature of the drafting of the grounds and lack of supporting

evidence. The Second Respondent denied this. The last consideration of Client 1’s

matter had been in 2002 and the grounds addressed the question of how to interpret

Article 8 with reference to the five stage test in R (Razgar) v Secretary of State for

the Home Department [2004] UKHL 27 and to Huang v Secretary of State for the

Home Department [2007] 2 AC 167. The case was therefore arguable.

23.8 Client 2 - The Second Respondent agreed that by the time Client 2’s application had

been determined the Immigration Rules had been tightened by the replacement of

paragraph 395C with 353B. The Second Respondent had referred to

R (Shabani) v Secretary of State for the Home Department [2015] UKUT 403 (IAC)

in his witness statement. This was to show that the approach to paragraph 353B was

not fully settled, despite the decision in SH (Iran) v Secretary of State for the Home

Department [2014] EWCA Civ 88 as similar arguments to those being raised for

Client 2 had been argued post-SH (Iran) and permission had been granted. The

Second Respondent maintained that the prospects of success had been just about 20%

notwithstanding the criminal conviction that Client 2 had records against him.

23.9 The Second Respondent accepted that the grounds were from a template and were

very similar to Client 1’s grounds. This is because the legal principles were the same.

23.10 It was put to the Second Respondent that the submission in paragraph 16 of the

grounds to the effect that R (Jaku and others) v Secretary of State for the Home

Department [2014] EWHC 605 (Admin) had decided that non-compliance with the

Immigration Rules during the period of residence being relied upon was not fatal to

the claim, was misleading. In Jaku at [61], Ousley J had stated “The fact that all or a

significant proportion of the period was non-compliant with the law is of itself a

perfectly satisfactory reason for discounting the period, on the basis set out in the

EIG”. The Second Respondent accepted that the grounds were poorly drafted but

maintained that the case was arguable as, all things being equal, the Client’s

application could have been granted notwithstanding the non-compliance. Jaku was

simply stating that the Home Office should set out the length of the residence and was

entitled to use non-compliance as a reason to refuse the application. The Second

Respondent agreed that the relevant passage had not been set out in the grounds.

23.11 Client 3 - The Second Respondent confirmed that he was the attending fee earner on

20 June 2014 when he advised Client 3, contrary to his witness statement in which he

stated that the fee earner who attended the client had been YM. He had also

completed the checklist on the same date. It was put to the Second Respondent that he

had not warned Client 3 that he may be out of time. The Second Respondent stated

that he was not out of time and this is why he was not warned.

18

23.12 It was put to the Second Respondent that the checklist contained an entry that read

“out of time and lack of merits”. The Second Respondent stated that he had reviewed

this case and there were two points that arose. The first was in the context of a claim

under the Human Rights Act. That matter was out of time. However the failure to

issue a removal decision was ongoing and not out of time. The Second Respondent

accepted that this should have been made clear to the client in the subsequent letter

and he accepted that it was not clear. The Second Respondent accepted that the

grounds were inadequate as pleaded. However there was an arguable ground being

raised by reference to TE (Eritrea) v Secretary of State for the Home Department

[2009] EWCA Civ 174. The Second Respondent accepted that the other two grounds

were not properly arguable.

23.13 Client 4 - The Second Respondent confirmed that the Firm acted for Client 4,

conducted by Person A under the Second Respondent’s supervision. The Firm was

aware that Client 4’s claim had been refused eight months earlier. It was put to him

that there was no evidence that anything had changed since that refusal. The Second

Respondent stated that the grounds contained a list of documents in support of the

application as well as a detailed consideration of Article 8. There were some points in

this case which the Second Respondent had believed were different to the previous

application. For example, the question of whether the client had suffered an historic

injustice had not been addressed in the previous decision. Client 4 had claimed

asylum in 1998 and was in the UK lawfully. Any refusal before October 2000 could

go back for a fresh decision and so not all appeal rights had been exhausted. The

client had been in the country lawfully between 1998 and 2006 and had been waiting

for a decision since 30 June 2009.

23.14 The Second Respondent was asked what made the case truly exceptional. He stated

that the facts that he had been refused asylum in 1999, before the Human Rights Act

came into effect, his compliance with the immigration rules, regular reporting,

integration and language skills and the fact that he had family and relatives in the

country, when taken together made the claim truly exceptional, and had to be

considered in the context of Huang.

23.15 It was put to the Second Respondent that Client 4 had never had leave to enter or

remain. He denied this, telling the Tribunal that if somebody was granted temporary

admission, that meant that they were lawfully here. This was a point of dispute

between the Respondent and the Applicant.

23.16 The Second Respondent agreed that the grounds submitted for Client 4 were similar

to those for Client 2. He further agreed that the section dealing with the case of Jaku

was, again, poorly drafted.

23.17 The Second Respondent told the Tribunal that one of the other points being raised

arose from the case of HM (Malawi) v Secretary of State for the Home Department

[2010] EWHC 140 (Admin) to the effect that the style of the refusal had been

criticised by the courts for concluding that, because the asylum claim was rejected, it

was therefore clearly unfounded. The Home Office had to give reasons that

specifically explain why it had concluded that a claim was clearly unfounded rather

than simply relying on the refusal itself as a reason. This point arose in the case of

Client 4 and indeed of some of the other exemplified clients.

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23.18 Client 5 - The Second Respondent had stated in his witness statement that “the Firm’s

work in this case was done by me” but in his oral evidence he explained that he had

drafted the grounds but had not given the advice. He accepted that there was nothing

contained in the written advice contained in the attendance note of 7 August 2014

warning that Client 5 was out of time, but he had received oral advice. The

Second Respondent was asked how he would have known this if he was not the

person giving the advice, and he explained that he had spoken to Person A about his

cases and he was of the view that he (Person A) had given that advice. However the

Second Respondent accepted that it should have been recorded in the attendance note.

The Second Respondent accepted that it was his reference on the letter to the client

dated 7 October 2014 and on the attendance note. He explained that the letter had

been done under the Second Respondent’s name as he was the overall supervisor and

was assisting with drafting. He accepted that the client would have believed the letter

came from him. He had conducted the initial assessment and may have met the client

a second time when he opened the file.

23.19 The grounds referred to the issue of whether the client had suffered historic injustice

and had a legitimate expectation. It was put to the Second Respondent that in Geraldo

it had been decided that no legitimate expectation arose in the circumstances. The

Second Respondent accepted that after Geraldo, simply falling in to the period

covered by the legacy programme did not give rise to a legitimate expectation by a

certain date. However because of the specifics of an internal Home Office note

relating to Client 5, this distinguished his case from that of Geraldo and made the

point arguable.

23.20 Client 6 - This case was similar to Client 3 but the difference was that when Client 6

came to the Second Respondent he was not outside the three-month time limit. The

client care letter dated 20 June 2014 contained the Second Respondent’s reference and

stated that the Second Respondent was advising Client 6. The Second Respondent

denied that he had given the advice and stated that this was another error. He agreed

that at no point had Client 6 been advised about a three-month time limit. He agreed

that he should have been told that the time limit was about to expire and had not been.

The Second Respondent agreed that the grounds were very similar to Client 3. The

Second Respondent accepted that some of the grounds advanced were not properly

arguable. It was put to him that if he had properly supervised the fee earner who had

drafted the grounds he would have realised that that the fee earner was using a

template to make unarguable submissions. The Second Respondent stated that the

template itself was not wrong but his mistake was not reading every ground that the

fee earner drafted. The point raised in the grounds based on TE Eritrea were not

grounds that he would have approved personally in respect of Clients 3 or 6 but he

recognised that they amounted to a valid argument. He would normally have advised

clients that their prospects of success were low and he accepted that this should have

been made clear to Clients 3 and 6. It was put to the Second Respondent that he had

advised each of the Clients 3, 5 and 6 but had failed to advise them that their

prospects were low and had failed to warn them about the three-month time limit. The

Second Respondent denied drafting the client care letters and he had not drafted

Client 6’s grounds though he may have seen the client at the beginning of the case. It

was put to him that the cases showed a pattern of not giving clients’ proper warning of

problems with the case because he did not want to put the clients off paying him. The

20

Second Respondent strongly denied the suggestion stating that if he took money from

clients and then lost the case, this would tarnish his reputation.

23.21 Client 7 - The Second Respondent confirmed that the Firm had made an application

for LTR on the basis of Client 7’s private life with Person B. Person A had drafted

grounds which the Second Respondent agreed were template grounds. It was put to

him that at no time did the grounds state there was anything wrong in the reasons for

the decision. The Second Respondent disagreed and referred to the absence of the

two-stage test as discussed above following the case of HM (Malawi). The

circumstances were identical to a case decided later namely FR & KL (Albania) v

Secretary of State for the Home Department [2016] EWCA Civ 605. The failure to

apply the two-stage process made the decision irrational. It was put to the Second

Respondent that it was not arguable to submit that because there was a pro forma, that

automatically made the decision unlawful. The Second Respondent did not accept

this. That was his understanding of FR and KL. In addition there were other factors in

support of Client 7’s application. It was put to the Second Respondent that it could not

be irrational for the Secretary of State to say that she was not satisfied that a private

life existed in circumstances where she had no evidence. The Second Respondent

stated it was one factor to take into account, and it was irrational not to carry out

scrutiny. It was very difficult to obtain driving licences, open bank accounts or

register with the NHS if you had come to the UK illegally. It was put to the

Second Respondent that the grounds had been drafted to thwart removal from the UK

and that it was an abuse of the system. The Second Respondent denied this, telling the

Tribunal that he believed the claim was arguable.

23.22 Client 8 - The Second Respondent accepted that the drafting in respect of this client

was inadequate. The factual matrix was inadequate, but there was still a point to be

argued about the fact that the case had been certified as “bound to fail”. This was an

asylum claim and a higher burden of scrutiny was required and generally a right of

appeal was granted. The Second Respondent told the Tribunal that he was not

suggesting that every asylum claim had a right of appeal but in Albania the concept of

a blood feud existing was genuine. It was put to the Second Respondent that he was

coming up with points not contained in the grounds to resist the inference that the

claim was abusive. The Second Respondent denied this and stated that it was a proper

challenge against the certification that the claim was bound to fail.

23.23 Client 9 - The Second Respondent acknowledged this was not a strong claim and

relied on his position with regards to the two-stage process referred to in Clients 5

and 7.

23.24 The Second Respondent told the Tribunal that he was passionate about his area of law

although he accepted that he should have done a better job of supervising Person A.

Immigration JR work was not a way to make money and the Firm had other

successful departments. He had been let down by one individual and it was sad that

matters had got to this stage. He had been invited to the Home Office in the past to try

resolve matters that would otherwise have resulted in litigation – an invitation he had

accepted. Had he not done so he could have brought JR proceedings “hundreds of

times”. In response to a question from the Tribunal the Second Respondent stated that

his duty to the court was first and foremost and this meant not misleading or giving

wrong facts. His duty to his client was to act in his client’s best interests and provide

21

value for money. He had a duty to represent the client even if it was a weak case. He

had always represented clients in keeping with his duties to the court. He was asked if

he recognised a potential for conflict between his duties. The Second Respondent

stated that if the grounds had been put better it would have been easier for the judges

to understand and he maintained that he had not breached his duties to the court.

Findings of Fact and Law

24. The Applicant was required to prove the Allegations beyond reasonable doubt. The

Tribunal had due regard to the Respondent’s rights to a fair trial and to respect for

their private and family life under Articles 6 and 8 of the European Convention for the

Protection of Human Rights and Fundamental Freedoms. The Tribunal had careful

regard to all of the evidence, written and oral, together with all the submissions, a

brief summary of which are set out below, made on behalf of all parties.

25. Allegation 1.1 - Between around January 2014 and December 2015, they

facilitated the abuse of litigation by bringing or facilitating judicial review claims

on behalf of clients, including Clients 7-9, in circumstances where they knew or

should have known that the claim was not properly arguable and its true

purpose was to thwart and/or delay lawful removal and/or procure release from

lawful detention. This was a breach of any or all of Principles 1, 2, and 6 of the

SRA Principles 2011 and a failure to achieve Outcome 5.6 of the SRA Code of

Conduct 2011.

Applicant’s Submissions

25.1 Mr Dunlop told the Tribunal that Clients 7-9 were examples of a systemic problem

and that the Allegation was not limited to these three clients. Out of the 35 cases that

were certified as TWM, 25 were ones in which the client was facing imminent

removal and in 13 of the 35 cases removal directions would have been cancelled as a

result of the claim. He referred to the witness statement of Mr Bennett who had

itemised those 13 cases. The Applicant had focused on Clients 7 to 9 as it had the

most information about them and that the Allegation was wider as these examples

provided evidence of an abuse of pattern. There was no evidence that the Firm had

ever refused to draft grounds for clients and the instances where negative advice was

given.

25.2 Client 7 had no hope of success and was a classic example of abuse of litigation. The

grounds were generic and the submissions relating to a private life were nonsensical.

By bringing the claim Client 7 bought a further month in the UK.

25.3 Client 8’s claim was also hopeless and he too bought himself an extra month and used

that time to make further applications to the Home Office. Client 9 had bought

himself an additional two months.

25.4 The Respondents had knowingly and/or recklessly facilitated abusive judicial review

claims. The Respondents were the sole owners, managers and directors of the Firm

which was why it was right that this Allegation was brought against the

First Respondent as well as the Second Respondent. The Firm was one of the three

firms which had brought the highest number of TWM claims.

22

25.5 The Firm had drafted statements of facts and grounds on behalf of their LIP Clients.

By providing such a drafting service, the Firm facilitated its LIP Clients in submitting

claims that were TWM. The Respondents had been unable to provide evidence to

show that the Firm had refused potential clients on the basis that the merits of their

claims were too poor.

25.6 The checklist, completed for Client 3 was inconsistent with the Respondents’

evidence as to how they categorised cases, or what action they took when a case had

no merit. By facilitating abusive claims in this way both of the Respondents had

obstructed the administration of justice by thwarting lawful removal and by wasting

the time of the Upper Tribunal, with the result that other, more meritorious cases

would be delayed. The Tribunal was referred to a report by SRA published in

March 2015 ‘Walking the Line’, which set out examples of when litigation could be

deemed abusive. Mr Dunlop submitted that by acting in the ways described in that

report, the Respondents had failed to act with integrity. If they had adhered to an

ethical code they would have ensured that the Firm did not take on, or assist LIP

Clients in making, abusive claims.

25.7 The Respondents’ conduct in facilitating abuse of the JR process was likely to

diminish the trust which the public placed in the Respondents, the Firm and the legal

profession.

Respondents’ General Submissions

25.8 Ms Broadfoot made a number of submissions which she invited the Tribunal to keep

in mind when considering each of the Allegations. A summary is set out in this part of

the judgement for ease of reference and to avoid repetition.

25.9 Ms Broadfoot invited the Tribunal to have in mind six overarching propositions when

considering the Allegations:

In assessing standards, context was important. The Respondents were operating a

High Street Firm representing a reviled group in society. The work was

high-volume, modestly paid and the legal framework was complex and

challenging. The immigration system was often chaotic and the problems at the

Home Office had been well-publicised over a number of years. The

decision-making process had been characterised by delays, poor decision-making

and a large number of applications. There were systemic problems which included

a legal framework which was “extraordinarily complex”, subject to frequent

change and produced hundreds of decisions in the higher courts each year. The

complexity of the system had been noted by the courts on numerous occasions.

The inequality of arms occurred at every level through the system. It was against

this background that the Respondents’ conduct should be assessed. There was

often no other way persuade the Home Office to look at the case properly, in the

absence of a right of appeal, other than a JR.

Access to the court was a constitutional right. Ms Broadfoot did not suggest that

this right was unlimited or that it conferred a right to abuse litigation. However the

starting point was that individuals had the right to access the courts and any doubt

as to proper arguability should be resolved in favour of the individuals.

23

There was a distinction between a case that had low prospects of success, or even

very low prospects of success, and cases which amounted to an abuse of the court

processes. Ms Broadfoot drew the Tribunal’s attention to Ridehalgh v Horsefield

[1994] Ch 205 at [233F] where Sir Thomas Bingham had stated “A legal

representative is not held to have acted improperly, unreasonably or negligently

simply because he acts for a party who pursues a claim or defence which is plainly

doomed to fail”. Ms Broadfoot submitted that the Respondents’ actions should be

assessed in the context of what a reasonably competent solicitor knew or was

required to know at the time.

TWM classification was an expedient mechanism designed to filter out the

weakest JR applications and was not synonymous with abusive applications that

might warrant a civil restraint order.

Unbundled services were permitted. This had been accepted by Mr Whitmarsh in

his evidence and was not a point of dispute between the parties. The Respondents

denied that the reason for offering the service was to avoid scrutiny or that they

had sought to conceal the advice and assistance that they were providing to LIPs.

Chapter 60 of the Enforcement Instructions and Guidance (“EIG”) represented the

Home Office policy as to when an application for JR should and should not defer

or suspend removal.

Respondents’ Submissions on Allegation 1.1

25.10 Ms Broadfoot took issue with the drafting of Allegation 1.1 and submitted that it was

unfair to the Respondents. The Tribunal was invited to strike out word “including” as

there was no evidence in relation to any matters other than Clients 7-9 and it was

unfair to the Respondents to plead it in the way it had been. Ms Broadfoot further

submitted that the Tribunal would have to find both that the Respondents had

facilitated the abuse of litigation in the manner described and that the true purpose

was to thwart and/or delay lawful removal and/or procure release from lawful

detention. If the Applicant was unable to prove both limbs then the Allegation should

be dismissed.

25.11 In respect of the individual clients, the Tribunal was invited to accept the

Respondents’ evidence. The refusal of Client 7’s application was in two parts. There

was the refusal itself and there was the decision to certify as “clearly unfounded”. The

effect of that certification was that there was no in-country right of appeal. The

grounds had focussed on the certification element of the decision. If successful,

Client 7 would have had a right of appeal in-country. Client 7 was a young woman in

detention and such people were often vulnerable. The Second Respondent had given a

clear and methodical explanation in his evidence.

25.12 Ms Broadfoot submitted that the JR was not unarguable from conduct perspective. It

had been a reasonable point and was supported by HM (Malawi). The claim had not

been abusive and the Respondents had not been reckless. There had been no attempt

to thwart lawful detention and no manifest incompetence.

24

25.13 Client 8’s case had been very similar to Client 7’s in terms of the certification issue.

Ms Broadfoot submitted that the issue of blood feuds was complex and the claim was

arguable, albeit it had been accepted by the Second Respondent in cross-examination

that the grounds were inadequate in terms of dealing with the facts. The JR was not

abusive or reckless and was not aimed at thwarting lawful removal.

25.14 Ms Broadfoot reminded the Tribunal that the Second Respondent had accepted that

Client 9’s claim was not strong and that the client had been told as much. The drafting

had been poor but the challenge to the certification was arguable. It was not an abuse

and it had not been for the purpose of thwarting lawful removal.

The Tribunal’s Decision

Scope

25.15 The wording of the Allegation stated “including Clients 7-9” and Mr Dunlop had

confirmed that the Allegation went wider than just the three exemplified clients. This

had resulted in a painstaking and detailed analysis of statistics and argument over

their interpretation that had not assisted the Tribunal. The Applicant had supported its

case in relation to Clients 7-9 by reference to specific documentation relating to those

three matters. The Tribunal was therefore able to analyse those documents and

consider the evidence and submissions in relation to them in order to reach a decision,

having regard to the standard of proof. The Tribunal was not in a position to carry out

such analysis in relation to other, non-particularised, matters. The extensive reference

to statistics was no substitute for reliance on specific files and in any event the

Tribunal found the statistical evidence to be unclear and inconclusive. The Tribunal

therefore limited its consideration to those three clients.

25.16 Ms Broadfoot had submitted that in order for the Tribunal to find the matter proved it

would have to find that the Respondents had facilitated the abuse of litigation and that

its true purpose was those pleaded in the Allegation. The Tribunal examined the

wording carefully and was satisfied that it was appropriate to accept this submission.

In considering each of the clients’ cases the Tribunal firstly considered whether the

abuse of litigation had been facilitated and, if it had been, then moved on to consider

whether its purpose had been to thwart and/or delay lawful removal and/or procure a

release from lawful detention.

Definition of ‘Abuse of Litigation’

25.17 The Tribunal considered what distinguished an abuse of litigation from merely

presenting a weak case to the Upper Tribunal. The Tribunal regarded the difference as

being of significance, both in the context of these proceedings and in discharging their

duties to the Courts and to their clients: It was vital that solicitors were not inhibited

from advancing weak cases on behalf of their clients in circumstances where that

might be appropriate in the particular case as this could have the undesired effect of

denying clients access to justice. At the same time it was imperative that solicitors

discharged their duties to the courts.

25

25.18 The Tribunal considered the ‘Walking the line’ guidance and noted the definition

given in that document which stated, under the heading ‘Abuse of the litigation

process’:

“This involves the use of litigation for reasons that are not connected to

resolving genuine disputes or advancing legal rights. Purposes can include

harming commercial competitors, silencing criticism or stalling another

process. The aim is to use the threat of cost or delay to achieve an end

unconnected to litigation. Unlike predatory litigation, approaches are not

usually made to numerous persons and obtaining financial redress for the

client is not necessarily, the goal. An example would be the pattern, noted by

the administrative court, of solicitors making late, purportedly urgent

applications for judicial review of deportation decisions after all appeals had

been exhausted and without any merit, any new facts or any legitimate reason

for either the urgency or the lateness. The court suspected these were being

used as a stalling tactic to unjustifiably delay clients’ deportations. The courts

have emphasised that such conduct represents and abuse of process”.

25.19 In Madan the Court had stated that “It will amount to professional misconduct to

make an unjustified application with a view to postponing the implementation of a

previous decision”.

25.20 The Tribunal adopted those definitions and, in considering the Respondents’ conduct,

approached the Allegation on the basis that for a claim to be abusive it had to be:

Lacking any legitimate grounds and have no hope of succeeding; and

The drafter knew or ought to have known that it was unarguable; and

Its sole purpose was to prevent removal or secure release from lawful detention

25.21 If those matters were established beyond reasonable doubt, the Tribunal would then

consider whether either of the Respondents had facilitated that abuse.

Definition of ‘Facilitating’

25.22 The Tribunal adopted the definition in the Oxford English Dictionary which was as

follows; “Make (an action or process) easy or easier”.

Client 7

25.23 The Attendance Note of 15 April 2015 described the merits of the application as

“low”. The client care letter of 16 April 2015 had been sent by YM and the Tribunal

was satisfied that the Second Respondent was not the attending fee earner on this

case. The letter referred to a need to assess the merits before lodging a JR. The letter

was sent to the Home Office the following day with the reference “SM/YM…”, which

again pointed away from the Second Respondent having had conduct of this case. The

Home Office provided a detailed response on 5 May 2015, following which YM had

spoken to Client 7 by telephone. YM advised Client 7 that there were “low merits in

submitting a JR”. The Attendance Note, which summarised a 54-minute telephone

call, referred to the duties to the Court. The Attendance Note showed that the Client

was offered the unbundled service. However it also noted “If at any point we think the

26

matter is too difficult for you to deal with yourself even with the benefit of our advice,

we will not be able to assist you on an unbundled basis under this agreement. You

may then wish to instruct us as your legal representatives under a new agreement but

you are also free to seek advice elsewhere”.

25.24 The Tribunal noted that the offer to provide the full service, and therefore by

implication, go on the record, was inconsistent with trying to avoid a Hamid court

situation arising. This, in turn, was inconsistent with the claim being one that was

abusive.

25.25 The Tribunal found that the merits of Client 7’s claim were indeed low but they were

not so low as to necessarily make it an abuse of litigation to advance them. The

refusal of permission found that the real basis of the client’s claim was simple

disagreement with the decision of the Home Office. The Tribunal was not satisfied

that either Respondent knew or ought to have known that the JR was wholly without

merit.

Client 8

25.26 The advice given to Client 8 on 19 May 2015 with reference to the option of a full

service was in the same terms as that for Client 7. Again, the Second Respondent did

not appear to have been the conducting fee earner.

25.27 The Second Respondent had agreed that the drafting of the ground was very poor. In

contrast to the refusal of permission for Client 7, the refusal in respect of Client 8

made clear that the grounds advanced had been hopeless. Client 8 had been up-front

with the Police about the fact that the initial basis of his claim for asylum was a desire

to claim state benefits. Putting that aside, as the Judge had done, the JR had been

unsupported by any evidence and there was “plainly no Article 8 case that could

rationally succeed”. The person drafting the JR application would have known, or

ought to have known, that they lacked any legitimate grounds and that they had no

prospect of success.

25.28 The Firm had been instructed two days before the removal was due to take place. In

the absence of anything remotely meritorious put forward, the Tribunal was satisfied

that there had been no other purpose than to delay removal, which was what

happened. The Tribunal was satisfied beyond reasonable doubt that this was an

abusive claim for JR.

25.29 The Tribunal then considered whether either of the Respondents had facilitated the

abuse of litigation in respect of Client 8. The Respondents were both directors of the

Firm. The First Respondent was additionally COLP and COFA and the

Second Respondent was head of the Immigration department. They were each

responsible for the operation of the Firm and for the actions of the fee earners that

they employed. The Firm had facilitated the drafting of the grounds and the lodging of

the JR claim by permitting Person A to do it at a time when there had already been a

warning to the Firm in the case of Patel. The Tribunal was satisfied beyond

reasonable doubt that the First and Second Respondent had facilitated the abuse of

litigation in respect of Client 8.

27

Client 9

25.30 The Second Respondent again did not appear to have been the conducting fee earner

in this matter. The advice given to Client 9 on 27 April 2015 had been that there had

been “insufficient merits” to proceed with a JR. This was a lower description of the

prospects than “low merits” and was reflected in the refusal of permission which was

specific in its criticism of the grounds. The Judge found that the grounds had not

engaged with the question of internal protection and had not identified “even

arguably” how the Home Office had acted unlawfully or irrationally. The Judge had

concluded that “the material provided gives rise to no prospect of success whatsoever

in any further judicial review”. The question of internal protection was fundamental in

any claim for asylum and the fact that the grounds had not engaged with that meant

that the person drafting them would have known, or ought to have known, made the

claim wholly meritless. This was particularly so in circumstances where the client had

made previous unsuccessful claims for asylum and had told the Immigration Officer,

following his arrest, that he had come to the UK to find employment.

25.31 The JR had been lodged two days before the Client 9’s removal was due to take place.

In the absence of grounds that were arguable, the Tribunal was satisfied that there had

been no other purpose than to delay removal, which was what happened. The Tribunal

was satisfied beyond reasonable doubt that this was an abusive claim for JR.

25.32 The Tribunal then considered whether either of the Respondents had facilitated the

abuse of litigation in respect of Client 9. The same factors existed here, with regard to

the Respondents’ respective roles in the Firm, as for Client 8 and the Tribunal was

satisfied beyond reasonable doubt that both Respondents had facilitated the abuse of

litigation in respect of Client 9.

Principle 1 and Outcome 5.6

25.33 The Tribunal found that facilitating the abuse of litigation was clearly inconsistent

with the Respondents’ duties to the Court and the requirement upon them to uphold

the rule of law and the administration of justice. The sole purpose of the JR claims in

respect of Clients 8 and 9 had been to thwart a lawful decision of the Home Office to

detain and/or remove. In addition, by facilitating the lodging of claims at the UTJ that

were abusive, the Respondents had created an additional workload which meant that

cases as a whole took longer to move through the system. The Tribunal found beyond

reasonable doubt that by allowing this to happen in respect of these clients, the

Respondents had breached Principle 1 and failed to achieve Outcome 5.6.

Principle 6

25.34 The Tribunal was keen to emphasise that solicitors had a duty to robustly defend

clients and this often included holding the executive and those in positions of

authority to account. However the situation in respect of Clients 8 and 9 was that JR

claims with absolutely no merit had been made for no legitimate purpose. The trust

the public placed in the profession depended upon solicitors appreciating the

difference between robustly defending their clients’ position and abusing litigation.

The Tribunal was satisfied beyond reasonable doubt that the Respondents had failed

28

to behave in a way which maintained that trust by permitting a situation to arise where

they had allowed abusive claims to be made on behalf of Clients 8 and 9.

Principle 2

25.35 The Tribunal adopted the definition of lack of integrity as set out in

Hoodless v Financial Services Authority [2003] UKFSM FSM 007 and had regard to

Williams v SRA [2017] EWHC 1478 (Admin). The Tribunal noted that neither

Respondent was the conducting fee earner in respect of Clients 8 or 9. They were in

positions of management which carried significant responsibility but had nevertheless

been one step removed from the actual process of drafting and lodging of the abusive

JRs. They had facilitated the abuse through their inadequate management of the Firm

and supervision of fee earners. However in respect of these two clients the absence of

a positive act meant that the Tribunal could not be satisfied beyond reasonable doubt

that they had lacked moral soundness.

Recklessness

25.36 Allegation 1.5 had referred to Allegations 1.1-1.4 being put, inter alia, on the basis of

reckless disregard. The Tribunal adopted the test in R v G [2003] UKHL 50. The first

question for the Tribunal was whether either of the Respondents perceived that there

was a risk that they were facilitating the abuse of litigation. This was a subjective

assessment. The SRA had audited the Firm, as explained by the First Respondent, and

had not raised any issues. On the other hand Patel ought to have served as a warning

to the Respondents to re-double their efforts to ensure that this sort of problem did not

happen again. The Tribunal noted that Person A had not been in the cases that had

resulted in Hamid hearings and he was an experienced practitioner. The supervision

may have been lacking but the Tribunal was not satisfied to the requisite standard that

the either Respondent had perceived there to be a risk. The Tribunal was not required

to consider the objective assessment of the Respondents’ actions in the context of

recklessness. In the particular circumstances or these matters, the Tribunal found the

allegation of recklessness not proved.

25.37 The Tribunal found Allegation 1.1 proved beyond reasonable doubt to the extent of a

breach of Principles 1 and 6 and Outcome 5.6 in respect of Clients 8-9. The Tribunal

did not find Allegation 1.1 proved in respect of Client 7 or in respect of Principle 2 or

recklessness.

26. Allegation 1.2 - Between around January 2014 and December 2015, they

deliberately or recklessly failed to warn Clients 1-6 that any claims they brought

would be bound to fail and/or out of time, thereby breaching any or all of

Principles 2, 4, 5 and 6 of the SRA Principles 2011.

Applicant’s Submissions

26.1 Mr Dunlop submitted that this allegation could be broken down into three categories;

a) Clients 1, 2 and 4; b) Clients 3 and 6 and c) Client 5.

29

26.2 Clients 1, 2 and 4 were Article 8 claims. By 2012 and more so by 2014, Home Office

policy had been tightened and unless an individual had been in the UK for 20 years

they had to show something beyond long residence. If they could not then there was

no realistic hope of a successful application. The Firm had taken money from these

clients without adequate warning that they did not have a realistic hope. Client 1’s

grounds contained submissions that were not supported by any evidence and

contained no particularisation. The Attendance Note of 8 January 2015 suggested that

the client had not been warned that if he lost he would have to pay the Home Office

costs. If he had been properly advised he would not have brought this claim. Client 2

was another failed asylum case. This client had absconded and committed a criminal

offence. There was again no record of him being warned that his case would fail. The

same generic submissions that had been made in respect of Client 1 had been on

behalf of client 2 and they had misrepresented what had been decided in Jaku.

Client 4, which was also an asylum claim, had absconded twice and the first JR had

been found to be unarguable. The Firm made a further JR claim two years later. It

would have been obvious that there was no hope in making the claim, given that

nothing had changed in the intervening two years.

26.3 The advice given to Client 3 to the effect that his prospects were “less than

reasonable” was vague and did not make clear the reality of the position. He had been

given no advice about time limits. The same was true in respect of the advice given to

Client 6. In both cases they should have been advised that there was no prospect of

success. The Judge had described Client 6’s claim as “not remotely arguable” and it

was also out of time.

26.4 The advice to client 5 had been equivocal. The advice given on 7 August 2014

implied that the client possibly had good prospects in the early part of the document

but subsequently advised that the case had a less than reasonable prospects of success.

The client had not been advised that he was out of time. There was no record of the

client being advised that his reason for the claim being out of time would be

successful.

26.5 An ethical solicitor would have warned his client candidly about the weakness of their

case. By failing to warn Clients 1-6 of the weakness of their cases, the Respondents

were not acting in the best interests of clients or providing a proper standard of

service. In behaving in this way the Respondents were likely to diminish the trust

which the public placed in them, the Firm and the legal profession. The public would

expect a solicitor in the position of the Respondents to provide clear advice regarding

the prospective merits of claim, including factors which would render the claim likely

to fail by reason of the merits, or the timing, or both.

Respondents’ Submissions

26.6 Ms Broadfoot accepted that the evidence did not show that there were warnings as to

time limits in relation to the JR claims. However the Tribunal had not seen the

complete files for Clients 1-6 and in some cases there was evidence that the issue had

been considered. The Tribunal was invited to draw an inference, where applicable, in

favour of the Respondents. The Tribunal was invited to accept their evidence on this

matter.

30

The Tribunal’s Decision

26.7 The Tribunal considered the advice given, where available, in respect of each of the

six clients.

Client 1

26.8 The decision that was the subject of challenge was 28 August 2014. The JR was

lodged on 31 October 2014. It was within the three-month time limit and there was

therefore no need for Client 1 to have been advised that the claim would be out of

time. The Judge certified the JR application as TWM. However the words ‘bound to

fail’ were not used and it did not contain references to the grounds being ‘hopeless’ or

similar, as had been used in other cases. There was insufficient evidence before the

Tribunal to satisfy it to the requisite standard that the Respondents knew or ought to

have known that it was bound to fail.

Client 2

26.9 The decision that was the subject of challenge was dated 9 May 2014 but was not

served on the Firm until 5 February 2015. The JR claim was filed on 16 March 2015.

It was within the three-month time limit and there was therefore no need for Client 2

to have been advised that the claim would be out of time. The Tribunal did not have

before it the advice given to the client before the lodging of the JR. However

following the Acknowledgement of Service, the client had been advised, on

6 May 2015, that the prospects of the JR succeeding were “low” due to the long

period of non-compliance, the identity fraud and the decision in SH Iran. The fact that

such advice had been given raised a reasonable doubt as to the allegation that the Firm

had failed to warn Client 2 that his application was bound to fail.

Client 3

26.10 The Tribunal found that in respect of Client 3 the advice given to the client on

20 June 2014 had been provided by the Second Respondent personally. The client

care letter of the same date bore the Second Respondent’s reference alone and indeed

he had corrected an error by hand. It clearly stated “You are being advised by

Mohammed Saleem who is a partner at this firm”. The Attendance Notes had the

reference “SM” and one of these was handwritten and could not therefore be the result

of a computer-generated error. The Second Respondent had accepted that he gave the

advice in his evidence.

26.11 The decision that was the subject of challenge was made on 29 October 2013. The

three-month deadline for a JR was therefore 29 January 2014. The Firm had clearly

been aware of this issue as the Home Office, in replying to the letter before action,

had raised it in their letter of 28 April 2014. The Second Respondent had noted it on

the checklist which was completed on 20 June 2014. However there was no evidence

that the client had been warned in writing that any claim was several months out of

time. In his evidence the Second Respondent had accepted that the advice could have

been clearer. The Tribunal was satisfied beyond reasonable doubt that the advice was

simply not there on this point and the Second Respondent had failed to advise Client 3

that his claim was out of time.

31

26.12 Client 3 had been advised that the prospects were “less than reasonable” in the letter

of 20 June 2014. On 22 July 2014 the client had been advised that “it is unlikely a

Judge would find that the grounds are substantiated”. On 9 September 2014,

following the Acknowledgement of Service by the Home Office, the client had

“accepted that he has low merits”. The Tribunal was not satisfied beyond reasonable

doubt that the Second Respondent had failed to warn Client 3 that his claim was

bound to fail.

Client 4

26.13 The decision that was the subject of challenge was made on 19 November 2014 and

the JR was brought on 12 January 2015. It was within the three-month time limit and

there was therefore no need for Client 4 to have been advised that the claim would be

out of time.

26.14 There were no Attendance Notes that were of assistance to the Tribunal in relation to

the advice given on the merits. However the decision to refuse permission, while

certifying the application as TWM, did not castigate the grounds in the terms referred

to in respect of Clients 8 and 9, for example. There was insufficient evidence before

the Tribunal to satisfy it to the requisite standard that the Respondents knew or ought

to have known that it bound to fail.

Client 5

26.15 On 18 November 2011 three years discretionary LTR had been granted by the

Home Office. The challenge was to the decision to grant discretionary LTR instead of

ILR. The Tribunal therefore found that the date of the decision under challenge was

18 November 2011. The JR was filed on 13 August 2014 and was therefore

significantly out of time – a point accepted in the grounds.

26.16 The Second Respondent had accepted that the work on this matter had been done by

him. On 7 August 2014 the Second Respondent had attended the client for over an

hour and advised him in detail as to the legal position concerning his application to

the Home Office. The Attendance Note described a JR as having “less than reasonable

prospects” but made no reference to time limits.

26.17 On 11 August 2014 the Second Respondent had attended the client for two hours and

advised him on a number of matters. The Attendance Note of that meeting again made

no reference to time limits. The Second Respondent had accepted that no such advice

was recorded on the papers. The Tribunal noted his explanation in his evidence that

the case was pursued on the basis of ‘historic injustice’. However this would have

been more compelling if that had been explained in the written records of the advice

given to the client. The advice that the claim was out of time was not given to Client 5

until the letter of 7 October 2014. The Tribunal was satisfied beyond reasonable doubt

that the Second Respondent had failed to advise Client 5, at the appropriate stage in

proceedings – in other words before the JR was lodged - that his claim was out of

time.

32

26.18 Client 5 had been advised that the prospects of success were “less than reasonable” in

the letter of 7 August 2014. The Firm had subsequently advised him in October 2014

that the point he had taken on JR relating to discretionary LTR and ILR had been

“challenged extensively and they have been refused”. The Tribunal was not satisfied

beyond reasonable doubt that the Second Respondent had failed to warn Client 5 that

his claim was bound to fail.

Client 6

26.19 The date of the decision being challenged was dated 7 April 2014. The Firm was

consulted on 20 June 2014, shortly before the three-month time limit expired. The JR

was lodged on 24 July 2014, two weeks out of time. At the time the advice was given

the time limit had yet to expire.

26.20 Client 6 had been advised that the prospects of success were “less than reasonable” in

the letter of 20 June 2014. The Firm had subsequently advised him in October 2014

that the point he had taken on JR relating to discretionary LTR and ILR had been

“challenged extensively and they have been refused”. The Tribunal was not satisfied

beyond reasonable doubt that the Second Respondent had failed to warn Client 6 that

his claim was bound to fail.

26.21 The Tribunal therefore found that the Second Respondent had failed to advise

Clients 3 and 5 that their claims were out of time. The Tribunal was not satisfied

beyond reasonable doubt that the Second Respondent had failed to warn any of the six

clients that their claims were bound to fail.

26.22 The First Respondent had not been involved in the provision of advice to any of the

clients. He did not have conduct of the matters and had no direct involvement in how

they were handled. The Allegation had been put on the basis that there had been a

deliberate decision a reckless disregard of the position behind the failure to advise

properly. This required closer involvement than that of COLP and COFA. The

Tribunal was not satisfied beyond reasonable doubt that the First Respondent had

failed to warn Clients 1-6 that their claims were bound to fail and/or were out of time.

26.23 In respect of Clients 3 and 5 and the Second Respondent’s failure to warn them that

they were out of time, the Tribunal considered whether he had done so deliberately or

recklessly and whether the Principles had been engaged.

26.24 The Tribunal noted that advice about the time limit had been conveyed subsequent to

the commencement of JR proceedings in the case of Client 5. This was inconsistent

with an intention to deliberately withhold advice on this point. There was no specific

reference to time limits at any stage in relation to Client 3 but it did not automatically

follow that this demonstrated an intentional decision to withhold such advice. The

Tribunal did not find that the Second Respondent deliberately failed to warn Clients 3

or 5 about this.

26.25 The Second Respondent was aware, at the time he advised Client 3, that there was not

only a risk that the claim could be of time but was aware that it was in fact out of

time. He had endorsed the checklist to that effect in relation to Client 3. In respect of

Client 5 he had included it in the grounds drafted for Client 5 and so was aware of the

33

risk at least at the time of drafting. The Tribunal was satisfied beyond reasonable

doubt that, applying the subjective test, the Second Respondent perceived there was a

risk that the JR claims would suffer by reason of their lateness. The Tribunal therefore

moved on to consider whether the Second Respondent’s actions in light of that risk

were reasonable. The only reasonable course of action in those circumstances was to

warn the clients before the JR was lodged that this was a potentially fundamental

weakness in their case. This was necessary in order that the clients could make

informed decisions about whether to proceed or not. This advice was of such

importance that it had to be in writing – oral advice was not sufficient. The

Second Respondent had not done this and the Tribunal was satisfied that he had not

acted reasonably in the knowledge of the risk that existed. The Tribunal was satisfied

beyond reasonable doubt that the Second Respondent had been reckless in failing to

warn Clients 3 and 5 that their claims were out of time.

Principle 2

26.26 The Tribunal found that the reckless breach of obligations that the Second Respondent

had demonstrated had failed to meet the high standards described in Williams. The

clients were vulnerable by virtue of their immigration status and depended on accurate

and complete professional advice. The question of time limits was not a minor detail

but a fundamental element of JR procedures. The failure to warn the clients on this

point was serious and the Tribunal was satisfied beyond reasonable doubt that it

amounted to lack of integrity on the part of the Second Respondent.

Principles 4 and 5

26.27 The Tribunal found beyond reasonable doubt that failing to warn clients about a

fundamental weakness in their case could self-evidently not amount to acting in their

best interests or to providing them with a proper standard of service.

Principle 6

26.28 The Tribunal found as a matter of irresistible logic that acting without integrity,

recklessly and failing to provide a proper service to clients or act in their best interests

would diminish the trust the public placed in the profession. That trust required

solicitors to comply with their duties and this had not been a minor infraction but a

serious failing in the advice given to clients.

26.29 The Tribunal found Allegation 1.2 not proved in respect of the First Respondent.

26.30 The Tribunal found Allegation 1.2 proved beyond reasonable doubt in respect of the

Second Respondent on a reckless basis in relation to the question of time-limits in

relation to Clients 3 and 5 and in respect of Principles 2, 4, 5 and 6.

27. Allegation 1.3 - Between around January 2014 and December 2015, they offered

an unbundled service only to clients with claims they knew to be very weak

and/or unarguable, and/or sought to conceal their involvement in the drafting of

clients’ claims in order to shield their firm from criticism, in breach of any or all

of Principles 2, 4 and 6 of the SRA Principles 2011 and thereby failing to achieve

Outcomes 1.1, 1.2 and/or 1.5 of the SRA Code of Conduct 2011.

34

Applicant’s Submissions

27.1 Mr Dunlop accepted that it was legitimate to offer an ‘unbundled service’ providing

that clients were also given the option of the full service, including the Firm going on

the record.

27.2 Mr Dunlop submitted that if the Firm assessed a claim as having prospects that were

below a certain level they would draft grounds but would not go on record. The

Applicant’s case was that there was no 20% cut off point, and grounds would be

drafted for anyone who paid them, however hopeless those grounds may be. The

Firm’s motive in not going on the record was to avoid judicial criticism and another

Hamid hearing.

27.3 Mr Dunlop submitted that the Respondents’ defence had changed. Their letter to the

SRA dated 26 October 2015 had made no reference to a 20% threshold.

Mr Whitmarsh had asked them about this issue in his email to them of 7 June 2016

when he asked them to “Please set out the criteria that you applied in deciding

whether you should act for the client in the JR application, or whether the client

should act as a LIP”. The response dated 17 June 2016 had again made no mention of

the 20% threshold.

27.4 The response had also explained that the reason for assisting a LIP was that “If the

Court is going to be faced with a lengthy, rambling, poorly written, poorly presented

application which does not fully summarise the law and facts, reaching a decision is

likely to take up more of the court’s valuable time”. Mr Dunlop submitted that this

approach was wrong as the Firm should not be getting involved in abusive litigation at

all and it was no defence to say that the abuse would have happened anyway.

27.5 The Firm had not been open about its role in drafting grounds and had hidden behind

the phrase ‘advice and assistance’ to prevent an appearance before a Hamid court and

possible referral to the SRA.

27.6 It was far from clear that all the clients would have brought a JR without the comfort

of the grounds being drafted by solicitors. In any event the grounds that were drafted

were of such poor quality that it probably took longer to consider than if they had

been drafted by a litigant in person.

27.7 The Respondents’ position had changed in their letter of 18 November 2016. This was

a response to the Explanation with Warning letter (“EWW”) dated 21 October 2016.

This response contained the first reference to a 20% threshold.

27.8 The SRA had issued a s44B notice asking how many clients were turned away due to

this 20% threshold. The Firm had no such records. Mr Dunlop submitted that there

was compelling evidence that no 20% threshold was applied. The only internal

checklist that was available, which related to Client 3, had no section saying ‘Merits –

bound to fail’. It had been marked out of time and lack of merits but grounds were

drafted anyway.

35

27.9 The Second Respondent’s witness statement had produced another change in his line

of defence in which he stated that the Firm would possibly still act in asylum cases

where chances were less than 20%.

27.10 The Respondents had lacked integrity in offering unbundled services only to

unwinnable cases to avoid judicial criticism. Mr Dunlop referred the Tribunal to

Williams and submitted that such conduct was not consistent with the high standards

to which solicitors should adhere. The Respondents should have been prepared to be

on the record or should not have been drafting grounds at all.

27.11 The Respondents had failed to act in the best interests of their clients by offering an

unbundled service only for cases they knew to be weak. In behaving in this way they

had diminished the trust the public placed in them, the Firm and the legal profession.

The public was entitled to expect that a solicitor would act in a manner which was

pursuant to their clients’ best interests in all matters.

Respondents’ Submissions

27.12 Ms Broadfoot submitted that there was a significant problem with the drafting of this

Allegation. In order to find the Allegation proved, the Tribunal would have to find

both concealment and motive.

27.13 The positioning of the word “only” was such that it was unclear whether the

Allegation was that “they offered an unbundled service only to clients with claims

they knew to be very weak…” (emphasis added) or that “they offered an unbundled

service only to clients with claims they knew to be very weak…” (emphasis added).

Any doubt arising had to be exercised in favour of the Respondents.

27.14 In response to this submission, Mr Dunlop submitted that while, taken in isolation, it

may appear ambiguous –it was plain from the body of the Rule 7 Statement that the

first interpretation was correct – the only service offered in weak cases was an

unbundled service. The Respondents had understood that, as was clear from their

Answer.

27.15 Mr Dunlop and Ms Broadfoot agreed that to find Allegation 1.3 proved the Tribunal

would need to be satisfied that a) as matter of fact the Firm had a policy it would

provide an unbundled service only for clients whose cases were weak and b) the

motive for doing so was to shield the firm from criticism.

27.16 As Ms Broadfoot had submitted as part of her general submissions, it was not in

dispute that the offering of an unbundled service was permissible. It was not a breach

of conduct to bring a very weak claim and unbundled services had also been offered

to clients with reasonable prospects of success. The Tribunal was referred to the

client care letter for Client 3 dated 20 June 2014 in which the possibility of

transferring to the full service was entertained. The same was true in Client 5’s client

care letter of 7 August 2014 and Client 6’s of 20 June 2014.

36

27.17 Ms Broadfoot submitted that it was unclear why a solicitor would offer unbundled

services in order to shield their Firm from criticism if it was not a breach of

professional conduct to advance a very weak case. The Tribunal was invited to accept

the Respondent’s evidence in respect of this Allegation.

The Tribunal’s Decision

27.18 The Tribunal noted that the provision of unbundled services was not improper in

itself. It also noted the unchallenged evidence of the Respondents that the Firm had

offered unbundled services before the decision in Patel and before Hamid courts had

become a concept.

27.19 The Tribunal considered the advice given to clients contained in the client letters and

Attendance Notes that were available. These documents set out the extent of the

Firm’s retainer. It was right to say that there was some ambiguity and inconsistency in

the advice being given, in that part of the Attendance Notes/letters indicated that the

Firm could not act because the merits were too low and other parts indicated that it

could.

27.20 In the client care letter to Client 3 dated 20 June 2014 the following phrase was

significant:

“We are not agreeing to provide any further advice under this agreement or to

act as your representative in respect of court proceedings or in any

communication with third parties. If you require further advice from us on this

matter or a related matter or any other matter you should make another

appointment with us and any further advice provided will be on the basis of a

separate agreement and separate fee”. The same wording appeared in the client

care letter to Client 5 dated 7 August 2014 and to Client 6 dated 20 June 2014

and an Attendance Note of advice given to Client 9 dated 27 April 2015.

27.21 The second significant phrase appeared further on in the same letters to Client 3,

5 and 6 and also in Attendance Notes for Client 7 (5 May 2015), Client 8

(19 May 2015) and Client 9 (27 April 2015):

“If at any point we think that the matter is too difficult for you to deal with

yourself even with the benefit of our advice, we will not be able to assist you

on an unbundled basis under this agreement. You may then wish to instruct us

as your legal representatives under a new agreement but you are also free to

seek advice elsewhere”.

27.22 The Tribunal drew an inference from these phrases that, notwithstanding the fact that

the Firm had deemed the case to have “low” or “less than reasonable prospects” of

success, it was prepared to entertain the possibility of coming on the record if the

client got into difficulty.

27.23 The Tribunal could not be satisfied beyond reasonable doubt that the only service the

Firm would offer to clients with weak cases was an unbundled service. In light of that

finding the Tribunal was not required to consider motive.

37

27.24 Allegation 1.3 was not proved in respect of either Respondent.

28. Allegation 1.4 - Between around January 2014 and December 2015, they

breached their professional obligations to the Upper Tribunal not to make

submissions that they did not consider were properly arguable, thereby

breaching any or all of Principles 1, 2 and 6 of the SRA Principles 2011 and

failing to achieve Outcome 5.6 of the SRA Code of Conduct 2011.

Applicant’s Submissions

28.1 This Allegation related to all nine clients. Allegation 1.1 had been relating to a

particular form of abuse, specifically lodging a JR claim when there was an imminent

removal pending. This Allegation went wider than that, to include cases where

removal directions had not been made.

28.2 The Firm had the most JRs that were certified as TWM in a 6 month period.

Mr Dunlop submitted that this could not all be blamed on the drafting of Person A. It

reflected a policy on the part of the Firm. The response that the Firm was no worse

than average was no excuse. It was also incorrect as the Firm was worse than average

with a TWM figure of 43% against an average of 26%.

28.3 Mr Dunlop had, in cross-examination, put the Applicant’s case as to the inadequacy

of the grounds and merits in respect of Clients 1-9. This was not a situation where a

client gave a solicitor instructions that were “incredible” – it would still be that

solicitor’s duty to present that case. The situation in this case was that the Firm had

made submissions on points of law that were unarguable and bound to fail.

28.4 The Respondents, by knowingly or recklessly making submissions which were not

properly arguable had obstructed the administration of justice by wasting the time of

the Upper Tribunal, with the result that other, more meritorious cases would be

delayed.

28.5 This conduct amounted to a failure to adhere steadily to an ethical code and was

unethical and lacking in integrity. It also diminished the trust which the public placed

in the Respondents, the Firm and the legal profession.

Respondents’ Submissions

28.6 The Tribunal was referred to the Respondents’ evidence in respect of this Allegation.

The Firm had put forward arguments that were considered to be properly arguable.

Ms Broadfoot’s submissions in respect of Clients 7-9 in relation to Allegation 1.1 also

applied in respect of this Allegation.

28.7 In respect of Client 1 there had been three heads of challenge. Ms Broadfoot

submitted that it was impossible to fully assess the merits without seeing both the

letters making representations and the Home Office refusal. The pre-action protocol

process was complied with. The matter had been reviewed in light of the pre-action

protocol response and one ground had not been pursued. This was consistent with

proper consideration being given to the matter rather than a belief that the JR was

bound to fail. In the circumstances of the case, it was reasonable for Person A to have

38

concluded that it was not bound to fail. Client 1 had been in the UK for 12 years, had

no contact with family in Sri Lanka and had had his home area damaged in the

tsunami and the 2009 war. In that context it had been an arguable case.

28.8 In respect of Client 2, the Tribunal was invited to read both the submissions and the

response and to conclude that the grounds, and the JR, were not improper or abusive.

28.9 The Respondents had been candid about accepting defects in the grounds in relation

to Client 3. It was accepted that they were poorly and inadequately drafted. It was

further accepted that one of the grounds was not properly arguable. However the

Respondents’ position remained that in light of TE (Eritrea), there was a point that

was coherent and arguable.

28.10 The Tribunal was invited to read the grounds and the decision in respect of Client 4

and was reminded of the Second Respondent’s evidence.

28.11 The Second Respondent had drafted the grounds for Client 5. He had accepted that

the file notes were not satisfactory and Attendance Note was not adequate. The client

care letter should have been clearer. However the Second Respondent had nothing to

gain by lying about this matter. The relevant cut-off date for a decision under the

legacy programme had been July 2011. It appeared that Client 5’s case had been

deliberately delayed. This was on basis that the client had been asked to provide his

photographs in November 2010, normally an indication of an imminent decision. The

internal file note in March 2011 had aroused suspicion. That argument of conspicuous

unfairness amounting to illegality remained live after Geraldo and SH (Iran).

28.12 The Second Respondent had accepted that one of the grounds in relation to Client 6

had not been arguable. The Article 8 point was not unarguable. It was extremely

difficult to provide positive evidence of having no ties to another country. The

Second Respondent had again accepted that this JR suffered from poor drafting but it

was not improper or abusive or manifestly incompetent.

The Tribunal’s Decision

28.13 The Tribunal considered the wording of the Allegation and noted that, unlike

Allegation 1.1, this did not allege facilitation but the actual making of submissions to

the Upper Tribunal. The JR grounds in respect of Clients 1-4 and 6-9 had been drafted

by Person A. The First Respondent had not drafted any of the grounds. The

Second Respondent had drafted the grounds for Client 5.

28.14 The Tribunal noted the Second Respondent’s letter to Client 5 dated 7 October 2014.

The letter had, correctly, advised the client that his claim was late and could be

refused for that reason. It had also set out the reasons given by the Home Office for

defending the JR, specifically referencing the decision in Geraldo. The letter stated

“We explained that the Home Office did not consider the Iraqi policy properly so if

the Judge extends time in relation to the filing of your claim you may have a strong

argument on this point”. This was inconsistent with the Second Respondent believing

he was making unarguable submissions.

28.15 The Second Respondent had given evidence about his reasons for believing that the

points he had made were arguable. He had believed it at the time he made them and

39

he still believed that to be the case in his evidence before the Tribunal. The Tribunal

accepted the Second Respondent’s evidence as to his understanding of the merits of

his submissions to the Upper Tribunal.

28.16 The Tribunal could not be satisfied beyond reasonable doubt that the

Second Respondent did not consider the points he had made to have been unarguable.

28.17 The Tribunal found Allegation 1.4 not proved in respect of either Respondent.

29. Allegation 1.5 - Allegations 1.1 to 1.4 were pleaded on the basis that the

Respondents knew or recklessly disregarded the fact that at least some of the

totally without merit claims they brought or facilitated were not properly

arguable and/or out of time. In the alternative, if they considered that all or any

of those claims were properly arguable and failed to notice that the claims for

Clients 3, 5 and 6 were out of time, that would demonstrate manifest

incompetence in breach of any or all of Principles 1, 5 and 6 of the SRA

Principles 2011 and thereby failing to achieve any or all of Outcomes 1.2, 1.4 and

1.5 of the SRA Code of Conduct 2011.

Applicant’s Submissions

29.1 This was an alternative to Allegations 1.1-1.4. If the Tribunal found that the Firm

believed that the Respondents had turned their mind to the question of whether the JR

claims they brought or facilitated were properly arguable and formed the view that

they were then this demonstrated manifest incompetence. The matters outlined in the

submissions made in relation to Allegations 1.1-1.4 above and the observations of the

judges, demonstrated that no competent solicitor could have considered that the

claims of Clients 1-9 had a prospect of success of 20% or greater.

29.2 If the Respondents had been competent and acted with integrity and in compliance

with their duty to the Court they would not have brought or facilitated as many

unarguable and TWM cases as they had.

29.3 In addition, no competent immigration solicitor, who was acting with integrity and

complying with the said duty to the Upper Tribunal, would have: a) failed to warn

Client 6 that his claim had to be filed by 7 July 2014 or it would be out of time;

b) failed to warn Clients 1, 2 and 4, at any point before receiving payment for drafting

the statement of facts and grounds, that their claims were out of time or c) failed to

advise Client 5 that he did not need to bring a claim for judicial review but could

extend his LTR for three years and then apply for ILR.

Respondents’ Submissions

29.4 Ms Broadfoot submitted that the Respondents’ conduct has not been manifestly

incompetent. The pleadings had, in some cases, been inadequate but this did not

amount to manifest incompetence. The grounds were understood by the relevant

organisations and similar styles of pleadings had been used in cases where a

successful outcome had been achieved.

40

The Tribunal’s Decision

29.5 This Allegation was an alternative to be considered in circumstances where

Allegations 1.1-1.4 had not been proved as pleaded.

Alternative to Allegation 1.1

29.6 The Tribunal had found Allegation 1.1 not proved in respect of Client 7. The merits of

this case were low but not so low as to amount to manifest incompetence on the part

of either Respondent. The Tribunal did not find the alternative to Allegation 1.1

proved.

Alternative to Allegation 1.2

29.7 The Tribunal had found Allegation 1.2 not proved in relation to the warning to

Clients 1-6 that their cases were not properly arguable. The Tribunal considered

whether each Respondent had been manifestly incompetent. The First Respondent

was the COLP and had, by definition, overall responsibility for the practice. However

he had trusted the Second Respondent - his fellow Director and Head of the

Immigration department. Even if he had looked into the individual cases, given his

relative lack of expertise in immigration law he would not have been in a position to

judge the merits of each JR. The Tribunal did not find the alternative to

Allegation 1.2 proved in respect of the First Respondent.

29.8 The Second Respondent had more direct control as the supervisor of Person A and the

dispenser of advice himself in relation to Client 3. Where evidence of the advice had

been placed before the Tribunal it had indicated that clients were told that their

prospects of success were “low” or “less than reasonable”. While it was fair to say

that their prospects were not even that good, it did not cross the line into manifest

incompetence. If the Second Respondent had given an indication of excellent or even

good prospects then this would have clearly been manifestly incompetent.

29.9 In respect of warning that the claims may be out of time, the Tribunal had found that

Clients 1, 2 and 4 were in time and there could be no manifest incompetence for not

warning them about something that was not an issue. In respect of Client 6, the

three-month limit had not expired at the time the advice was given. The Tribunal did

not find this to amount to manifest incompetence.

29.10 In respect of Clients 3 and 5 the Tribunal had found the matter proved against the

Second Respondent on a reckless basis and there was no requirement to consider an

alternative.

29.11 The Tribunal did not find the alternative to Allegation 1.2 proved in respect of the

Second Respondent.

Alternative to Allegation 1.3

29.12 The Tribunal had found Allegation 1.3 not proved. The pleading of Allegation 1.5

made no reference to unbundled services and the Tribunal was therefore not required,

or indeed able, to consider an alternative to Allegation 1.3.

41

Alternative to Allegation 1.4

29.13 The First Respondent did not have proximity to the submission of grounds for the

reasons set out in the analysis of Allegation 1.4 set out above. The Tribunal did not

therefore find that he had been manifestly incompetent.

29.14 In respect of the Second Respondent, the Tribunal considered Client 5, that being the

matter in which he had drafted the grounds.

29.15 The Tribunal found that to believe that the claim was properly arguable when in fact it

was nearly three years out of time was manifest incompetence. The

Second Respondent had perceived there to be a risk that it was out of time as

discussed in relation to Allegation 1.2.

29.16 The time limit was a key feature of JR proceedings and the failure by the

Second Respondent to appreciate the significance of it being so significantly out of

time again amounted to manifest incompetence.

Principle 1

29.17 The consequence of the failure to appreciate the inherent weakness in Client 5’s case

as a result of manifest incompetence was that there was a risk that proceedings would

be issued that had no prospect of success for that reason alone. This was inconsistent

with upholding the rule of law and the proper administration of justice for similar

reasons to those expressed in relation to Allegation 1.1 – namely the effect on the

legal system of meritless claims being lodged.

Principle 5 and Outcomes 1.2, 1.4 and 1.5

29.18 It was a matter of common sense that a proper standard of service had not been

provided to Client 5 as the correct advice had not been given due to manifest

incompetence. It demonstrated a lack of skills and/or systems on the part of the

Second Respondent.

Principle 6

29.19 The trust the public placed in the profession was diminished if solicitors were

manifestly incompetent such that the proper administration of justice was not upheld.

29.20 Allegation 1.5 was proved beyond reasonable doubt to the extent that the

Second Respondent had been manifestly incompetent in relation to Client 5, in the

alternative to Allegation 1.4.

30. Allegation 1.6 - Between around January 2014 and August 2016, they failed to

take reasonable steps to protect, keep confidential and provide to the SRA client

files which were requested by the SRA, thereby breaching any or all of Principles

7, 8 and 10 of the SRA Principles 2011.

42

Applicant’s Submissions

30.1 Mr Dunlop submitted that notwithstanding that the Information Commissioner had

taken no action, placing files on top of a bin was not good enough. The Respondents

failed to comply with their legal obligations as they had failed to take appropriate

measures to protect clients’ personal data. In doing so they had failed to run their

business effectively and in accordance with proper governance and sound risk

management principles by failing to train employees not to leave papers in an

unsecure location and failing to instruct their cleaners not to remove or destroy their

clients’ papers.

Respondent’s Submissions

30.2 Ms Broadfoot referred the Tribunal to the Respondents’ evidence. It was accepted that

there had been a loss of data but the Information Commissioner had taken no action.

There was no evidence of a breach of confidentiality as the files appeared to have

been destroyed or lost and had not been disclosed to third parties.

The Tribunal’s Decision

30.3 The Respondents ought to have taken reasonable steps to have kept their clients’ files

safe at all times. This was particularly important when they were required by the SRA

as part of an investigation. The Respondents had accepted that they had left the files

on top of a waste bin. This had resulted in the files being lost. The Tribunal was

satisfied beyond reasonable doubt that the Respondents had not taken reasonable steps

to protect the files. There was an inevitable confidentiality risk when such events

occurred, which the Respondents themselves had recognised when they reported the

matter to the Information Commissioner. The Respondents, in losing the client’s data,

had breached Principle 10.

30.4 The Tribunal found that both Respondents had a responsibility to have prevented this

happening and the result had been that the files could not be provided to the SRA.

30.5 The Tribunal found that this meant that the Respondents had not complied with their

legal and regulatory obligations and had breached Principle 7.

30.6 The failure to keep client files safe was inconsistent with running the Firm properly

and in accordance with sound financial risk management principles. By failing in this

way the Respondents had breached Principle 8.

30.7 The Tribunal found Allegation 1.6 proved in full beyond reasonable doubt in respect

of both Respondents.

31. Allegation 2.1 - Between around January 2014 and December 2015, he failed

adequately to supervise Person A, an employee of the Firm, in breach of any or

all of Principles 6 and 8 of the SRA Principles 2011 and thereby failed to achieve

any or all of Outcomes 7.6, 7.7 and 7.8 of the SRA Code of Conduct 2011.

43

Applicant’s Submissions

31.1 If, as the Respondents had asserted, Person A was responsible for much of the

drafting then this was a failure of supervision on the part of the Second Respondent.

Mr Dunlop referred the Tribunal to R (Akram and Akram) v Secretary of State for the

Home Department [2015] EWHC 1359 (Admin). At [25] the Court had adopted the

principle expressed in Awuku (No 2) & Others [10 December 2012], in relation to

ex-parte applications, that “It is not sufficient for an application to be made by a

caseworker without scrutiny by a qualified lawyer”.

31.2 The failure to supervise Person A was a breach of all or any of Principles 6 and 8 of

the SRA Principles 2011 and had resulted in a failure to achieve all or any of

Outcomes 7.6, 7.7 and 7.8 of the SRA Code of Conduct 2011.

Respondent’s Submissions

31.3 Ms Broadfoot submitted that this Allegation could only refer to Clients 1-4 and 6-9,

as the Second Respondent drafted the grounds for Client 5. The Allegation was

denied. The level of supervision of Person A had been adequate considering

Person A’s level of experience of drafting JR claims. The Tribunal was invited to

accept the Second Respondent’s evidence in respect of this Allegation.

The Tribunal’s Decision

31.4 The Tribunal noted that the Second Respondent had admitted that, where Person A

had drafted the grounds, namely Clients 1-4 and 6-9, the quality of the drafting had

regularly been poor. The context of this occurring was the backdrop of Hamid courts,

Patel and Madan. The Second Respondent had been the supervisor of Person A and

had overall responsibility for the work of the department, including that undertaken

by Person A.

31.5 If the Second Respondent had been supervising Person A adequately, the deficiencies

in drafting ought to have come to light and been prevented.

31.6 The consequence of the poor drafting in the case of Clients 8 and 9 had been abusive

claims being lodged at the Upper Tribunal.

31.7 The Tribunal was satisfied beyond reasonable doubt that the Second Respondent had

failed to adequately supervise Person A.

31.8 Adequate supervision was a key part of sound risk management principles and the

Second Respondent’s failure to carry out those duties meant that he had breached

Principle 8 and had failed to achieve Outcomes 7.7, 7.7 and 7.8.

31.9 The trust the public placed in the profession relied upon well-run firms, which in turn

required the staff within those firms to be properly trained and supervised. The

Second Respondent had fallen short of his obligations with serious consequences. The

Tribunal found beyond reasonable doubt that Principle 6 had been breached.

31.10 The Tribunal found Allegation 2.1 proved in full.

44

Previous Disciplinary Matters

First Respondent

32. On 18 January 2012 The Tribunal had ordered that the First Respondent pay a fine of

£5,000.00, and costs of £14,000.00. This followed his admission to Allegations that:

Contrary to Rule 1(d) of the Solicitors Practice Rules 1990, in applications for

professional indemnity insurance, he had failed to ensure that complete and

accurate information was provided for the years 2005/06, 2006/07 and 2007/08.

Contrary to Rule 1.06 of the Solicitors Code of Conduct 2007, in applications for

professional indemnity insurance, he had failed to ensure that complete and

accurate information was provided for the years 2008/09 and 2009/10.

Second Respondent

33. None.

Mitigation

34. First Respondent

34.1 Ms Broadfoot accepted that the Tribunal’s findings were extremely serious.

34.2 In respect of the data protection breach there was nothing more that could be said

about that as both the Respondents had to accept it. The Information Commissioner

had taken no action and the matter was reported quickly and openly. The Respondents

had explained the position to the SRA and each client had been written to and notified

of what had occurred.

34.3 Ms Broadfoot reminded the Tribunal about the division of labour within the Firm and

the First Respondent’s lack of knowledge of immigration law. The breaches found

against the First Respondent in respect of Clients 8 and 9 appeared to be based on

imputed knowledge or reckless basis as well as the data protection breach in

Allegation 1.6. The Tribunal was referred to the statements made in mitigation. The

Tribunal was invited to consider the imposition of conditions, details of which would

also apply to the Second Respondent as set out below.

35. Second Respondent

35.1 The Tribunal had found a lack of integrity in two instances and a breach of principle 1

on three. Ms Broadfoot accepted that the Second Respondent has demonstrated

manifest incompetence with regards to the time limits and that he should have been

more prudent.

35.2 The Second Respondent accepted that he should not have trusted Person A and his

supervision had obviously been inadequate. The background however was that

Person A had been a very experienced individual who had been with the Firm for

eight years. He had been involved in many cases of a high-profile nature and this had

45

lulled the Second Respondent into a false sense of security which turned out not to be

justified.

35.3 Ms Broadfoot asked the Tribunal to take into account the fact that the

Second Respondent was passionate about the work that he did. He had been involved

in a number of high-profile cases. There was evidence of significant and positive

cooperation with Home Office. The Tribunal was referred to the witness statement of

Mr Dalton, a retired civil servant that set out the details of the Second Respondent

working with the Home Office to resolve cases that may otherwise have resulted in

litigation. The Second Respondent would not have done this if his motivation was

financial gain. The fact that Mr Dalton had been willing to provide a witness

statement and would have been willing to attend the Tribunal to give live evidence if

required reflected very well on the Second Respondent. The Tribunal was referred to

the character references that have been placed before it.

35.4 Ms Broadfoot acknowledged that the Tribunal would be considering the full range of

sanctions including potentially the most serious. The Tribunal was invited to consider,

as an alternative to striking off, or suspension, the imposition of conditions on the

Second Respondent’s practising certificate. Ms Broadfoot set out a number of

suggested conditions which she submitted would meet the object of the sanction

process as they would prevent the Respondent conducting judicial review work until

such time as a practice manager had been employed, Lexcel accreditation had been

secured and 12 months had elapsed from the date of the hearing. The conditions

would be punitive and would protect the public and the courts and the reputation of

the profession. There would be a longer term benefit in that obtaining Lexcel

accreditation without the inevitable consequence that the entire filing system would

have to improve. Ms Broadfoot recognised that the Firm’s procedures left something

to be desired. The Tribunal was invited, when considering sanction, to keep in mind

the complexity of immigration law.

Sanction

36. The Tribunal had regard to the Guidance Note on Sanctions (December 2016). The

Tribunal assessed the seriousness of the misconduct by considering the Respondent’s

culpability, the level of harm caused together with any aggravating or mitigating

factors.

37. The Tribunal considered the Second Respondent’s position first as the majority of the

Allegations had been proved against him.

38. The Tribunal found that the Second Respondent’s misconduct arose from an

overzealous desire to help clients that he perceived to be vulnerable. There was an

element of breach of trust in that clients had trusted him to correctly advise them as to

their prospects of a successful challenge by way of judicial review. At the material

time he had 15 years post-qualification experience and as a partner and supervisor of

Person A he had direct control of the circumstances giving rise to the misconduct. The

harm caused by this type of misconduct had been set out in Akram.

46

39. The Second Respondent had put unarguable points before the court and in doing so

had wasted his clients’ money and court time. He had facilitated it by way of his lack

of supervision.

40. The misconduct was aggravated by the fact that it had occurred on repeated occasions

over a period of time. The clients that the Second Respondent were representing were

vulnerable and the Respondent knew or ought to have known that his conduct was in

material breach of his obligations.

41. Matters were mitigated by the fact that he had no previous findings against him and

he had notified the SRA and the Information Commissioner concerning the data loss.

In assessing the Second Respondent’s insight, the Tribunal found that he had not

demonstrated a great deal of insight. He had not admitted the lack of supervision and

he had not readily accepted that the grounds in support of the JR applications had not

been well drafted. The Tribunal took into account the character references that had

been submitted on the Second Respondent’s behalf.

42. In light of the seriousness of the Tribunal’s findings, it was not appropriate to make

no order or to deal with the matter by way of a reprimand. The Tribunal considered

that a financial penalty was insufficient having regard to the level of culpability and

the fact that such a sanction would not protect the public or the reputation of the

profession.

43. The Tribunal determined that the Second Respondent should be removed from

practice with immediate effect. The Tribunal did not conclude that it was necessary to

strike him off. The appropriate sanction in all the circumstances was a fixed period of

suspension followed by the imposition of conditions for an indefinite period. These

conditions were necessary to protect the public and the Tribunal therefore imposed the

conditions as set out below. In considering the length of suspension the Tribunal

recognised that the Second Respondent was clearly knowledgeable in this area of law

and had adduced positive character references in mitigation. The Tribunal was

mindful of the importance of avoiding a situation whereby the Second Respondent

became de-skilled. At the same time he needed to reflect and revolutionise the way

that he practised. The appropriate and proportionate length of suspension was

18 months.

44. In assessing the First Respondent’s culpability the Tribunal found that the

management system was limited and chaotic. As the COLP and COFA he was

responsible for that.

45. The absence of proper management within the Firm resulted in a situation whereby

the Second Respondent had not been held in check and clients’ interests were put at

risk. The First Respondent was of similar experience to the Second Respondent and

clearly had direct control of the circumstances albeit he had not exercised that control.

Although the First Respondent had less direct involvement in the cases than the

Second Respondent, this was balanced against the fact that he had specific regulatory

responsibilities which he had failed to discharge.

47

46. The reputation of the profession was damaged in any case where failure to properly

manage a Firm resulted in the abuse of litigation. The misconduct was aggravated by

the fact that it had continued over a period of time and the problems were systemic.

The First Respondent had shown no insight and had left the running of these cases

entirely to the Second Respondent. The Tribunal was concerned in particular that the

First Respondent had been unable, when giving evidence, to properly describe his role

as a COLP. He also had one previous appearance before the Tribunal, the details of

which the Tribunal had noted.

47. The misconduct was mitigated by the fact that the First Respondent had trusted his

brother albeit he had turned a blind eye to how his brother was running the

department and the deficiencies therein. The Tribunal acknowledged that the

First Respondent had made the appropriate notifications regarding the data protection

breach and the character references submitted on his behalf which, like those of the

Second Respondent spoke well of him.

48. The Tribunal considered that making no order or imposing a reprimand was

insufficient to reflect the seriousness of the First Respondent’s misconduct. The

Tribunal was satisfied that the protection of the public and the reputation of the

profession did not require a suspension in the case of the First Respondent. The

appropriate sanction in his case was fine together with the imposition of restrictions

which the Tribunal deemed necessary for the future protection of the public. The

First Respondent had failed to discharge his regulatory obligations and the

consequences of that failure had been serious.

49. In considering the level of fine the Tribunal took into account all the circumstances

set out above and assessed this against the indicative fine bands. The Tribunal found

the First Respondent’s misconduct to be very serious and falling within level 4. The

Tribunal had regard to the character references adduced on behalf the

First Respondent and found that the appropriate and proportionate fine in his case was

£20,000.

Costs

50. Mr Dunlop applied for costs in favour of the Applicant in the sum of £52,057. The

majority of the Allegations had been proved either as pleaded or in the alternative. It

had been reasonable to pursue the Allegations, all of which had been certified by the

Tribunal showing a case to answer. The case had not been pursued in an unreasonable

manner and no additional costs have been incurred in respect of the unproven

allegations as the costs were part of a fixed fee arrangement. The majority of the

hearing time had been spent focusing on nine clients and it had been necessary to go

into the background to immigration law to respond to the Respondent’s cases. The

Allegations had been interrelated and it had been necessary to go through all of them

in detail in order to prove the ones where the Applicant had been successful.

51. Ms Broadfoot submitted that the costs would need to be apportioned between the two

Respondents. The Allegations pursued against the First Respondent had only been

proved in relation to Allegations 1.1 and 1.6 and in limited fashion. While starting

point for the award of costs was 50-50 the majority of the work undertaken would

have been in relation to the Second Respondent.

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52. There had been issues with drafting in the case, which been put on a very wide basis.

The Applicant had not needed to plead the case on anything other than the nine files.

The Applicant had relied on a number of files not put before the Tribunal in order to

paint a prejudicial picture of the Firm. The Tribunal had not found the wider picture

proved and the result had been additional stress on the part of the Respondents and

additional work undertaken in defending the proceedings including the instruction of

an expert witness. In light of the fact that not all of the Allegations had been proved

and bearing in mind the need to be proportionate Ms Broadfoot invited the Tribunal to

reduce the Applicant’s fees by 30%.

53. Ms Broadfoot and Mr Dunlop both invited the Tribunal to assess costs summarily.

The Tribunal’s Decision

54. The parties had invited the Tribunal to carry out a summary assessment of costs,

which it agreed to do. The Tribunal noted that while some of the matters had not been

proved the costs overall were low, having regard to the length of the hearing and the

detailed analysis required both of the exemplified matters and the immigration law as

it stood at the material time. The Tribunal was satisfied that the costs claimed by the

Applicant were reasonable and proportionate in all the circumstances. The next

question for the Tribunal was how those costs should be apportioned between the

Respondents.

55. The Second Respondent was the more culpable of the two, as reflected in the

Tribunal’s findings and sanction. The appropriate apportionment meant that he should

pay 75% of the Applicant’s costs, with the First Respondent paying 25%.

56. The Tribunal had not been addressed on either the Respondents means therefore

directed that the costs and the financial penalty in respect of the First Respondent

were to be paid in the usual way.

Statement of Full Order

57. Malik Mohammed Nazeer

1. The Tribunal Ordered that the First Respondent, MALIK MOHAMMED NAZEER,

solicitor, do pay a fine of £20,000.00, such penalty to be forfeit to Her Majesty the

Queen, The Tribunal further Ordered that the First Respondent, be subject to the

conditions set out in paragraph 2 below for an indefinite period and it further Ordered

that he do pay the costs of and incidental to this application and enquiry fixed in the

sum of £13,014.25.

2. The First Respondent shall be subject to conditions imposed by the Tribunal as

follows:

2.1 The First Respondent may not:

2.1.1 Practise as a sole practitioner or sole manager or sole owner of an authorised or

recognised body;

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2.1.2 Be a partner or member of a Limited Liability Partnership (LLP), Legal Disciplinary

Practice (LDP) or Alternative Business Structure (ABS) or other authorised or

recognised body;

2.1.3 Be a Compliance Officer for Legal Practice or a Compliance Officer for Finance and

Administration;

2.1.4 Work as a solicitor other than in employment approved by the Solicitors Regulation

Authority.

3. There be liberty to either party to apply to the Tribunal to vary the conditions set out

at paragraph 2 above.

58. Malik Mohammed Saleem

1. The Tribunal Ordered that the Second Respondent, MALIK MOHAMMED

SALEEM, solicitor, be suspended from practice as a solicitor for the period of

18 months to commence on 1 December 2017 and it further Ordered that he do pay

the costs of and incidental to this application and enquiry fixed in the sum of

£39,042.75.

2. Upon the expiry of the fixed term of suspension referred to above, the

Second Respondent shall be subject to conditions imposed by the Tribunal as follows:

2.1 The Second Respondent may not:

2.1.1 Practise as a sole practitioner or sole manager or sole owner of an authorised or

recognised body;

2.1.2 Be a partner or member of a Limited Liability Partnership (LLP), Legal Disciplinary

Practice (LDP) or Alternative Business Structure (ABS) or other authorised or

recognised body;

2.1.3 Be a Compliance Officer for Legal Practice or a Compliance Officer for Finance and

Administration;

2.1.4 Work as a solicitor other than in employment approved by the Solicitors Regulation

Authority.

3. There be liberty to either party to apply to the Tribunal to vary the conditions set out

at paragraph 2 above.

Dated this 1st day of February 2018

On behalf of the Tribunal

J. Martineau

Chair