R v. Diggines, Ex parte Rahmani and Others

R v Diggines, Ex parte Rahmani and Others

Court of Appeal (Civil Division)

[1985] 1 QB 1109, [1985] 1 All ER 1073, [1985] 2 WLR 611, [1984] Imm AR 229

Hearing Date: 7 November, 20 December 1984

20 December 1984

Index Terms:

Immigration -- Limited leave to enter -- Application to extend stay -- Applicants' appeal from Secretary of State's refusal to extend stay -- Request for oral hearing -- Adjudicator informed by applicants' advisers that applicants untraceable -- Dismissal of appeal without hearing -- Whether applicants entitled to be heard -- Whether breach of natural justice

Judicial Review -- Inferior tribunal -- Procedural defect -- Applicants' appeal against Secretary of State's refusal to extend stay in United Kingdom -- Request for oral hearing -- Applicants' advisers inviting adjudicator to determine appeal without hearing applicants -- Whether applicants entitled to certiorari to quash adjudicator's decision

Held:

Since 1978 the principal applicant, a married woman, had travelled between Iran and the United Kingdom. On her second visit her two small children, who were the other two applicants, came with her. She enrolled at a language school, and in 1979 was admitted as a student with leave to stay for seven months, later extended to September 1980. On 16 September 1980 she applied for a further extension to stay so that she could look after her children while they were at school here. That application, and also her children's applications, were refused. They appealed requesting an oral hearing. By the date of the hearing their advisers could not get in touch with them because the advisers had not recorded that the applicants were moving to a new address. They informed the adjudicator that they had no instructions and invited him to determine the appeals on the available material. The adjudicator did so and dismissed the appeals. When the applicants discovered that the appeals had been dismissed, they applied for judicial review to quash that order. Taylor J quashed the adjudicator's dicision and ordered him to hear the appeals. On appeal by the adjudicator:-- Held, dismissing the appeal, that although there was no fault or error in the adjudicator's determination of the applicants' appeals, the applicants through no fault of their own had been deprived of the right to be heard in breach of the rules of natural justice; that a decision of a tribunal made contrary to the rules of natural justice was outside that tribunal's jurisdiction and, therefore, amenable to the supervisory jurisdiction of the High Court to quash the proceedings; and that, accordingly, the judge had jurisdiction to quash the adjudicator's decision notwithstanding that the failure to comply with the rules of natural justice had been caused solely by the fault of the applicants' advisers (post, pp 618A-B, 619B-D, F, 621E-F, 622D-G, 623A-B, 624B-D, H-625B, D-F, 627H-628A, 629E-G). Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, HL(E); F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, HL(E) and Attorney-General v Ryan [1980] AC 718, HL(E) applied. Reg v Leyland Justices, Ex parte Hawthorn [1979] QB 283; Reg v Blundeston Prison Board of Visitors, Ex parte Fox-Taylor [1982] 1 All ER 646 and Reg v Immigration Appeal Tribunal, Ex parte Enwia [1984] 1 WLR 117, CA considered. Decision of Taylor J affirmed.

Cases referred to in the Judgment:

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; [1969] 2 WLR 163; [1969] 1 All ER 208, HL(E) Ashrafi v Immigration Appeal Tribunal [1981] Imm AR 34, CA Attorney-General v Ryan [1980] AC 718; [1980] 2 WLR 143, PC Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155; [1982] 3 All ER 141, HL(E) Council of Civil Service Unions v Minister for the Civil Service [1984] 3 WLR 1174; [1984] 3 All ER 935, HL(E) Daganayasi v Minister of Immigration [1980] 2 NZLR 130 Hoffman-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295; [1974] 3 WLR 104; [1974] 2 All ER 1128, HL(E) Reg v Ashford, Kent, Justices, Ex parte Richley (No 2) [1956] 1 QB 167; [1955] 3 WLR 778; [1955] 3 All ER 604, CA Reg v Blundeston Prison Board of Visitors, Ex parte Fox-Taylor [1982] 1 All ER 646 Reg v Board of Visitors of Hull Prison, Ex parte St Germain (No 2) [1979] 1 WLR 1401; [1979] 3 All ER 545, DC Reg v Gillyard (1848) 12 QB 527 Reg v Immigration Appeal Tribunal, Ex parte Enwia [1984] 1 WLR 117; [1983] 2 All ER 1045, CA Reg v Immigration Appeal Tribunal, Ex parte Jusoh (unreported), 28 July 1976, DC Reg v Immigration Appeal Tribunal, Ex parte Mawji (unreported), 29 October 1984; Court of Appeal (Civil Division) Transcript No 435 of 1984, CA Reg v Leyland Justices, Ex parte Hawthorn [1979] QB 283; [1979] 2 WLR 28; [1979] 1 All ER 209, DC Reg v Northamptonshire Justices, Ex parte Nicholson [1974] RTR 97, DC Reg v Secretary of State for the Home Department, Ex parte Mehta [1975] 1 WLR 1087; [1975] 2 All ER 1084, CA Reg v West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd [1974] QB 24; [1973] 3 WLR 149; [1973] 3 All ER 289, CA Reg (Burns) v County Court Judge of Tyrone [1961] NI 167 Rex v Cambridge University (1723) 1 Str 557 Rex v Glamorgan Inhabitants (1700) 1 Ld Ray 580 Rex v Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1951] 1 KB 711; [1951] 1 All ER 268; [1952] 1 KB 338; [1952] 1 All ER 122, CA Rex v Recorder of Leicester, Ex parte Wood [1947] KB 726; [1947] 1 All ER 928, DC Rex v Stafford Justices, Ex parte Stafford Corporation [1940] 2 KB 33, CA Ridge v Baldwin [1964] AC 40; [1963] 2 WLR 935; [1963] 2 All ER 66, HL(E)

Cases cited in the Judgment:

Reg v Immigration Appeal Tribunal, Ex parte Prajapati (unreported), 12 November 1981, Forbes J Reg v Thames Magistrates' Court, Ex parte Polemis [1974] 1 WLR 1371; [1974] 2 All ER 1219, DC

Introduction:

Appeal from Taylor J The applicants, Mrs Mahnaz Rahmani and her two children, made an application for judicial review of the decision of the immigration adjudicator, Mr CE Diggines, dated 16 December 1981, dismissing the applicants' appeal without oral hearing which the applicants had asked for, against the refusal by the Secretary of State to extend their stay in the United Kingdom. The applicants' adviser at that stage, the United Kingdom Immigrants Advisory Service ("UKIAS"), had stated that the applicants could not be found and the adjudicator determined the appeal on the material available. On 13 September 1982 McCullough J granted leave. Taylor J, who heard the application, ordered on 16 June 1983 that orders of certiorari should issue to quash the adjudicator's decision and of mandamus to direct the adjudicator or another adjudicator to hold an oral hearing of the applicants' appeal. By a notice of appeal dated 13 July 1983 the adjudicator appealed on the grounds that (1) the judge erred in law in deciding that he was entitled to grant judicial review to the applicants when it was accepted that there had been no error or unfairness or fault of any sort on the part of the adjudicator or the Secretary of State or anyone acting on his behalf; (2) the judge erred in finding that a mistake or error made by the applicants' advisers constituted a breach of the rules of natural justice so as to enable the applicants to obtain relief in the form of certiorari and/or mandamus; (3) the judge ought not to have granted relief to the applicants when on the facts it was clear that, even if they had had an oral hearing and/or had attended the hearing, the dismissal of their appeal was inevitable. The facts are stated in the judgment of Stephenson LJ.

Counsel:

Andrew Collins for the adjudicator. Sir Charles Fletcher-Cooke QC and George Warr for the applicants.

Judgment-READ:

Cur adv vult 20 December. The following judgments were handed down. PANEL: Stephenson, Fox and Purchas LJJ

Judgment One:

STEPHENSON LJ. On 16 December 1981 an adjudicator dismissed, unheard, an appeal by the applicants against a refusal by the Secretary of State to extend their stay in the United Kingdom. What is meant by describing the appeal as unheard will be explained below, as will the circumstances which led the adjudicator quite properly to dismiss it. The applicants did not appeal against the dismissal to the Immigration Appeal Tribunal; they applied for judicial review to quash it. On 13 September 1982 they were given leave to apply for judicial review and on 16 June 1983 Taylor J quashed the determination of the adjudicator and commanded him to hear the applicants' appeal by an oral hearing. From the judge's decision the adjudicator appeals to this court. The facts are fully set out in the judgment of the judge. The principal applicant is a married woman nearly 30 years of age. She has travelled on an Iranian passport from Iran, where her husband is, to this country, moving from one to the other since 1978, the second time on 8 December 1978 when she brought her two small children, who are the other two applicants. On her second visit she enrolled at the Wimbledon Language Centre to study English, and when she returned to this country on 28 September 1979 she was admitted as a student with leave to stay for seven months, subsequently extended to September 1980. On 16 September 1980 she applied for a further extension, giving as her reason "so that I can look after my children while they are at school here." The Secretary of State refused her application and the application of her children on 11 November 1980. Their appeals from this refusal were consolidated and were dismissed by the adjudicator in the circumstances which have now to be described. The children's applications were refused because their mother's application was refused. In notifying her (hereafter referred to as "the applicant") of his decision the Secretary of State said:

"You have applied for leave to remain in the United Kingdon in order to look after your children, but there is no provision in the immigration rules entitling you to an extension of stay for this purpose . . . The United Kingdom Immigrants Advisory Service" (UKIAS"), "a voluntary organisation independent of the government, will advise you, if you wish, about the decision which has been made against you and on whether to exercise your right of appeal . . . free of charge . . ."

giving the London address of the service. The applicant wisely consulted the service which has been of the greatest value to immigrants, but this time, as the judge found, it "let her down rather badly," giving rise to this appeal. The applicant has sworn an affidavit in which she says that the reason she gave in her last application for an extension was erroneous, and it is right to say that she had stated in her earlier application that she was going to take a one year course in September 1979 and intended to go back to Iran after she had finished her studies. The relevant parts of the rest of her affidavit, which deal with events after she decided to consult UKIAS, are summarised with other material facts by the judge: "According to her affidavit, she saw a Mr Moss. She indicated that she wished to appeal against the refusal. He agreed to act on her behalf. He suggested that she should produce various documents relating to the financial support from her husband. On 8 December, she went to see Mr Moss. She took with her the documents he had asked for. She had a short discussion with him in the course of which (she says on oath) she informed him that she had changed her address and had gone to live with her mother at 53, Alexandra Road, London SW19. She asked Mr Moss whether he required her passport but he said that it was not required at that stage. He said that he would contact her if he required it or anything else. He indicated that he had already lodged the notice of appeal on behalf of the applicant and the two children and gave her the rather gloomy news that it would be at least another nine months befor her appeal would be heard in the ordinary course of events. "After that meeting, the applicant continued with her studies at the Wimbledon Language Centre and took the view that so far as this appeal was concerned, the ball was very much in the advisory service's court. She thought that they would contact her when they wanted any other information or when anything was going to transpire. "There was a specific request on the notice of appeal for an indication as to whether a hearing was or was not requested. That was positively dealt with and the notice showed that a hearing was requested. Furthermore, on the next page of the notice of appeal, it was indicated that approximately three witnesses would be called in support of the appeal. "The next thing, so far as the applicant was concerned, was that she decided to go and see what was happening in March 1982 as she had heard nothing from the advisory service. By that time, she had completed her course at the Wimbledon Language Centre and she wished to go on and obtain a professional qualification. She therefore applied to the London Electronics College and was offered a place on their TEC course leading to a TEC Certificate. Before embarking upon that, she decided to go and see Mr Moss. She did so on 22 March 1982. It then became apparent that, in the interim, her appeal had been heard by an adjudicator on 16 December 1981. There had been no hearing as such but he had dealt with the matter on the papers and had dismissed her appeal.

"It must be said, in the clearest possible terms, that no criticism can be attached to the adjudicator in any way for dealing with the matter in the way in which he did. The advisory service indicated to the adjudicator that they had not been able to make any contact with the applicant at what had been her address and therefore that as they had had no instructions from her, they specifically invited the adjudicator to deal with the matter on the documents. Why the advisory service did that remains obscure, but there is an affidavit from Mr Moss which shows that he delegated the handling of the applicant's case to someone else in the advisory service. It is quite clear that the change of address which the applicant said that she communicated to them on 8 December 1980 was not acted upon by the advisory service and the documents that she said she left there have also not turned up. In his affidavit, Mr Moss says: 'Although I had no written record of the said meeting in December 1980 and could not trace the papers the first applicant said she had left with me she impressed me as a straightforward truthful person and I saw no reason to doubt what she said.'"

Mr Moss accepted the applicant's statement that she had given UKIAS her change of address with documentary evidence from her bank that they had received a remittance from her husband; he apologised to her for the way UKIAS had handled her case and tried vainly to get the Secretary of State to alter his decision. The Secretary of State, after correspondence with the applicant's Member of Parliament, refused to alter his decision and on 16 December 1982 decided to make a deportation order against the applicant, a decision which is the subject of another appeal awaiting the outcome of this. The adjudicator's determination and reasons were, in the absence of any oral evidence, or indeed any written submissions or argument on the applicant's behalf, short and right. I quote two of its four paragraphs: "2. The grounds of appeal, which was lodged by United Kingdom Immigrants Advisory Service on 12 November 1980, were stated at that time as 'to follow after detailed consultation with UKIAS.' However, no further grounds of appeal have in fact been submitted, and in a letter dated 12 November 1981 UKIAS said that their letter to the applicant at her last known address had been returned. Since they had no further instructions from the applicant and no knowledge of their whereabouts, UKIAS therefore requested that the adjudicator decide this case in such a manner as he may deem proper. I am therefore determining it under rule 12. 4. No evidence has been submitted to prove that the applicant had the necessary means to support herself and her children, even if the extension requested had been otherwise permissible under the rules, and she has failed to instruct her representative. In these circumstances I can only accept the Secretary of State's reasons for refusing the application, and the appeal is accordingly dismissed." The rule 12 to which he refers is rule 12 of the Immigration Appeals (Procedure) Rules 1972 (SI 1972 No 1648), which in effect requires an oral hearing except in five cases, of which I quote the first three:

"12. An appellate authority may determine an appeal without a hearing if -- (a) no party to the appeal has requested a hearing; or (b) the appellate authority has decided, after giving every other party to the appeal an opportunity of replying to any representations submitted in writing by or on behalf of the appellant, to allow the appeal; or (c) the appellate authority is satisfied that the appellant is outside the United Kingdom or that it is impracticable to give him notice of a hearing and, in either case, that no person is authorised to represent him at a hearing . . ."

Excepting condition (a) was not satisfied because in the notice of appeal lodged by UKIAS on her behalf, to which the adjudicator referred, she had requested a hearing of the appeal and stated that approximately three witnesses would be called to give evidence in support of her appeal. Condition (b) was not satisfied because no representations were submitted in writing on her behalf: the adjudicator had only the Home Office statement of facts and reasons required by rule 8 of the Rules of 1972. Condition (c) might seem to have been satisfied but was not because the notice given to UKIAS was by rules 26(1) and 44(1) deemed to have been given to the applicant. Conditions (d) and (e) have no application. If, therefore, there had been nothing further, the adjudicator would have exceeded his jurisdiction in determining the appeal without a hearing and would presumably have adjourned the appeal for inquiries to be made before determining it. But the request of the UKIAS representative to which the adjudicator refers made it difficult, if not impossible, for him to do otherwise that answer the request by dismissing the appeal there and then on the supposition that the applicant had abandoned her appeal. Mr Collins, on behalf of the adjudicator, has indicated that he would be willing for this court to decide the appeal on the basis that the adjudicator was at fault in acting as he did. But in my judgment he cannot now challenge the judge's finding that no criticism can be attached to the adjudicator. We have to decide the appeal on the basis that the adjudicator acted properly and without fault, and indeed that the applicant acted properly and without fault in respect of the appeal to the adjudicator, and that the only fault lies with UKIAS and theirs is the sole responsibility for depriving her of her right to an oral hearing. We have only to consider two grounds of appeal in this court:

"(1) that the judge erred in law in deciding that he was entitled to grant judicial review to the applicants when it was accepted that there had been no error or unfairness or fault of any sort on the part of the [adjudicator] or the Secretary of State or anyone acting on his behalf; (2) that the judge erred in finding that a mistake or error made by the applicants' advisers constituted a breach of the rules of natural justice so as to enable the applicants to obtain relief in the form of certiorari and/or mandamus."

A third ground, that on the facts dismissal of the applicant's appeal to the adjudicator was inevitable, has been rightly abandoned. In Reg v Immigration Appeal Tribunal, Ex parte Mawji (unreported), 29 October 1984; Court of Appeal (Civil Division) Transcript No 435 of 1984, this court decided very recently that the tribunal should rehear an appeal on the facts which they had never heard and decided because they misunderstood what was meant by an immigrant establishing himself here for the purpose of setting up in business. The court refused to dismiss the appeal on the ground that the immigrant would inevitably have failed on the facts if they had been given in evidence; the immigrant had been deprived of his statutory right to have his appeal on the facts decided by the tribunal. It would be even more obviously wrong for this court to decide what would have been the result of the applicant's appeal to the adjudicator if she had not been deprived of her statutory right to an oral hearing. We are then here concerned with what would strike not only a lawyer but any fair-minded person as a failure of elementary justice. Geoffrey Lane LJ, giving the judgment of the Divisional Court in Reg v Board of Visitors of Hull Prison, Ex parte St Germain (No 2) [1979] 1 WLR 1401, 1408G said: "Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances." Not only has the applicant not had a fair hearing; she has not had a hearing at all. An important question has been decided against a person who has not been heard or put her side of her case. Audi alteram partem is a principle of natural justice which has not been complied with. It has been violated, "never mind who by," runs the argument of Sir Charles Fletcher-Cooke for the applicant; and certiorari and mandamus are the only adequate means available to the applicant if she is to have natural justice. There is no other means available, for there is no power to enlarge the time for the necessary application for leave to appeal from the determination of the adjudicator which is laid down by rule 15 of the Immigration Appeals (Procedure) Rules 1972: Ashrafi v Immigration Appeal Tribunal [1981] Imm AR 34. That there is no such power Mr Collins cannot dispute; he can only point to the power of the Secretary of State to take full account of the relevant circumstances, including domestic and compassionate circumstances, in considering whether deportation is the right course on the merits and before making a deportation order, under rules 154, 156 and 158 of the Statement of Changes in Immigration Rules (1983) (HC 169). Any claim the applicant might have for damages for negligence against UKIAS or its officers would not, of course, give her a right or permission to remain in the United Kingdom: compare Reg v Secretary of State for the Home Department, Ex parte Mehta [1975] 1 WLR 1087, 1091, per Lord Denning MR The judge, after reviewing a number of authorities to which I must refer, and after considering Mr Collins' submission that to grant certiorari to a party who could prove no fault on the part of anyone except her own advisers would be an unjustifiable extension of the remedy with dangerous consequences in encouraging unscrupulous applicants to obtain second hearings, said:

"I do not consider it is a proper approach in this matter to be frightened by the spectre of successful, unscrupulous applicants manipulating the court's procedures to their advantage. Obviously, the court would have to deal in each case with the facts as they appear. In the present case, there has been no suggestion of mala fides at all. I have to look at this application to see whether, on the principles of natural justice and the priciples upon which judicial review is available, this is a proper case in which to grant the remedy. I find it incongruous to say, on the one hand, that one is concerned with the principles of natural justice and, on the other, to say one can only grant the remedy if natural justice is breached from a particular direction. In my judgment, it cannot be a proper test as to whether the remedy should be granted, in a case where the aggrieved party is wholly innocent, to ask whether the breach of natural justice has come from the court, the adjudicator, the opposition or from some fault on the part of the applicant's legal advisers. The test whether natural justice has been breached cannot turn, when the aggrieved party is wholly innocent, on whose fault it is that there was a breach. The court is concerned whether the proceedings as to the decision-making process are in natural justice properly open for review."

Mr Collins submits that nevertheless the court has no power to make the orders the judge made because judicial review is restricted to three categories and ought not to be extended beyond them. Those three categories are: (1) errors of law on the face of the record; (2) acts in excess of jurisdiction, including breaches of natural justice; (3) decisions obtained by fraud, perjury or collusion. The first category has been generally recognised at least since the judgment of Lord Goddard CJ in Rex v Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1951] 1 KB 711, affirmed [1952] 1 KB 338. But there is no error on the face of the adjudicator's determination and reasons. It has long been the court's duty to keep those whose proceedings the court supervises to acting within the powers which they have and to quash their decisions where they are reached by exceeding jurisdiction. And the House of Lords and the Privy Council have now re-affirmed that an order made contrary to natural justice is outside jurisdiction and void: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; F Hoffmann-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295; Attorney-General v Ryan [1980] AC 718, where Lord Diplock said, at p 727D, that it was a necessary implication that a minister, who had legal authority to determine the rights of individuals, is required to observe the principles of natural justice when exercising that authority, and if he fails to do so his purported decision is a nullity. But it stands valid until set aside or quashed: see Wade, Administrative Law, 5th ed (1982), pp 312-314 and 469, 470. Mr Collins' trinity of categories may not be up to date, as in the very recent speeches in the House of Lords deciding Council of Civil Service Unions v Minister for the Civil Service [1984] 3 WLR 1174, appears a revised version of the categories which puts breach of natural justice, equated with failure to act fairly, under the head of procedural impropriety. Here there was a failure to observe a most important principle of natural justice, but the failure, even if it can be said to be a failure by the adjudicator who had authority to determine the applicant's rights, was caused by the applicant's advisers. In every reported case of such a failure (says Mr Collins) except two, the failure has been the fault of the court or tribunal exercising authority to determine rights. The first of those exceptions was a decision which is not binding on this court and unless it is distinguishable from this case should be overruled by this court; the second was a decision which this court overruled on the facts, leaving open the question whether such a failure caused by an applicant's own advisers could entitle an applicant to judicial review. Before going into this question and examining the authorites there is the third category established in 1848 by the decision of the Court of Queen's Bench in Reg v Gillyard (1848) 12 QB 527. There Gillyard had been convicted by justices of an offence against the excise laws on the information of his employer, a maltster named Haigh, who had collusively procured Gillyard's conviction in order to avoid the penalties for which he himself was liable and would have been found liable if he had not prosecuted the apparently innocent Gillyard to conviction. Lord Denman CJ, at p 529, was willing "If it were necessary . . . to create a precedent"; Coleridge J considered, at p 530, that the rule for quashing the conviction was being made absolute on the ground that it was "a fraud and mockery, the result of conspiracy and subornation of perjury"; and Erle J said, at p 530, that in quashing the conviction the court was "exercising the most salutary jurisdiction which the court can exercise," namely, authority "to correct all irregularities in the proceedings of inferior tribunals." It is noteworthy that the court, undeterred by lack of precedent, quashed proceedings, regular on the face of them, of a court which had been misled, in order to do justice, one judge regarding the fraud practised on the court as constituting or causing an irregularity in its proceedings. That decision created an exception to any rule that might be thought to limt the power of the High Court to quash the decisions of tribunals that had themselves been at fault. It has been followed in such cases of perjury in affiliation proceedings as Rex v Recorder of Leicester [1947] KB 726; Reg v Ashford, Kent, Justices, Ex parte Richley (No 2) [1956] 1 QB 167 and Reg (Burns) v County Court Judge of Tyrone [1961] NI 167. But it has not yet been extended to cases where a tribunal has failed to observe a principle of natural justice by an innocent mistake; and Mr Collins submits that it should not be so extended, at any rate when the mistake is induced by fault on the part of the agents of the party complaining of the failure. The observations of Lord Reid in Ridge v Baldwin [1964] AC 40, 64, on the principle audi alteram partem, and of Lord Hailsham of St Marylebone LC in Chief Constable of North Wales Police v Evans [1982] 1 WLR 1155, 1160-1161, on fair treatment, cannot be read out of context as warranting the application of those principles to cases which they were not considering. Nor is this court free to follow the dissenting judgment of Lord Denning MR in Reg v West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd [1974] QB 24, 35-36, and to admit fresh evidence on applications for judicial reviews to correct the decision of an inferior court or tribunal; we must follow the decision of the majority in that case, as did the Divisional Court in Reg v Northamptonshire Justices, Ex parte Nicholson [1974] RTR 97. There are, however, the two reported attempts, one successful, to quash decisions reached without fault or error on the part of the court or tribunal, to which I have already referred. The first is the decision of the Divisional Court in Reg v Leyland Justices, Ex parte Hawthorn [1979] QB 283. There justices had convicted the applicant for judicial review of driving without due care and attention on adequate evidence without any procedural error. But there was a procedural error on the part of the prosecution in failing to disclose to the applicant the names and addresses of two material witnesses who had given information to the police but were not called to give evidence by the prosecution. That error deprived the applicant of an elementary right to be notified of those witnesses, which the Divisional Court held entitled him to have his conviction quashed. In giving judgment, with which the other judges agreed, Lord Widgery CJ, after referring to Reg v West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd [1974] QB 24, said, at p 286:

"There is no doubt that an application can be made by certiorari to set aside an order on the basis that the tribunal failed to observe the rules of natural justice. Certainly if it were the fault of the justices that this additional evidentiary information was not passed on, no difficulty would arise. But the problem -- and one can put it in a sentence -- is that certiorari in respect of breach of the rules of natural justice is primarily a remedy sought on account of an error of the tribunal, and here, of course, we are not concerned with an error of the tribunal; we are concerned with an error of the police prosecutors. Consequently, amongst the arguments to which we have listened an argument has been that this is not a certiorari case at all on any of the accepted grounds. We have given this careful thought over the short adjournment because it is a difficult case in that the consequences of the decision either way have their unattractive features. However, if fraud, collusion, perjury and such like matters not affecting the tribunal themselves justify an application for certiorari to quash the conviction, if all those matters are to have that effect, then we cannot say that the failure of the prosecution which in this case has prevented the tribunal from giving the defendant a fair trial should not rank in the same category. We have come to the conclusion that there was here a clear denial of natural justice. Fully recognising the fact that the blame falls on the prosecutor and not on the tribunal, we think that it is a matter which should result in the conviction being quashed."

Counsel for the applicant had referred to Reg v Gillyard, 12 QB 527, and Rex v Recorder of Leicester, Ex parte Wood [1947] KB 726, among other cases. Counsel for the prosecution submitted that certiorari would not lie for a miscarriage of justice based on a failure of professional duty and that the applicant might have a remedy by applying to the Crown Court for leave to appeal out of time, an application which would be positively supported by the prosecution. This possibility, not noticed in the judgment of Lord Widgery CJ, makes me doubt whether the court was right to exercise its discretion in the applicant's favour. But I do not doubt that the court has a discretionary jurisdiction to quash the decision of a court or tribunal which has been misled to its decision by misconduct of the proceedings on the part of the respondent to the application to quash: Reg v Blundeston Prison Board of Visitors, Ex parte Fox-Taylor [1982] 1 All ER 646. Is this true of mistake or misconduct on the part of the applicant's agents or even of the applicant himself? Comyn J held that it was, but this court reversed his decision on the facts and left the question open in Reg v Immigration Appeal Tribunal, Ex parte Enwia [1984] 1 WLR 117. There the facts as the judge found them were not very different from the undisputed facts of the instant case. The applicant claimed, and the judge found, that UKIAS took it upon themselves to notify the adjudicator that they wanted a paper judgment, but the applicant had in fact always wanted an oral hearing to enable him to give and hear evidence; and although he had himself contributed a great deal to the adjudicator's assumption that he did not want an oral hearing and although there was no criticism of the adjudicator or of the appeal tribunal which refused him leave to appeal, the judge quashed the tribunal's determination so as to give him an opportunity to be heard. This court, however, held that the applicant had never asked (unlike the applicant in this case) for an oral hearing, but had authorised UKIAS to submit the appeal to the adjudicator on the papers; and on the evidence before the judge he had, on advice from UKIAS, never wanted one until after his application to the tribunal for leave to appeal had been dismissed. In the course of giving the judgment of the court I said, at p 130:

"We have considered also the four or five categories of case to which judicial review applies, which Mr Collins submits, contrary to the judgment of Comyn J, are exhaustive, and the possibility that they may be extended in a proper case to cover errors in law, not only of the decision-making body, but of the other party, for which Reg v Leyland Justices, Ex parte Hawthorn [1979] QB 283 is an authority, and even of the party complaining of the decision by way of judicial review, for which there is no authority. Bearing in mind the judgments of Orr and Lawton LJJ in Reg v West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd [1974] QB 24, 39 and 42, and of Lord Hailsham of St Marylebone LC and Lord Brightman in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1160-1161 and 1174-1175, we can see that it might be permissible to quash a decision seriously affecting a person who by mistake or misunderstanding due to his own defects or those of his advisers was deprived of the opportunity of being fully heard before the decision was reached. However, we find it unnecessary and undesirable to decide whether judicial review would lie in such a case, because we are clearly of opinion that this is not such a case."

We have now to decide whether it is permissible to quash such a decision when the applicant is wholly innocent and it is the applicant's advisers who are at fault. I have come to the conclusion that it is. Taylor J thought so, and I agree with him for the reasons he gives in the passage which I have already quoted from his judgment. We do not have to consider, and the judge very properly did not consider, whether it is ever permissible to grant judicial review to an applicant who is not wholly innocent. Where the mistake or misunderstanding which leads to the denial of natural justice is the applicant's own, it may seldom, if ever, be right for the court to exercise its discretion in his or her favour; for in most, if not all, cases of this kind there could be no unfairness towards the author and only begetter of the procedural defect. But I would hold, if necessary, that the court has the discretionary power to review and quash a decision reached as a result of an applicant's own fault. The remedy of judicial review and the jurisdiction to quash decisions of lower courts and tribunals have their lines of limitation which do not extend beyond defects or irregularities at the trial and which will leave hard cases beyond the lines: see Reg v West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd [1974] QB 24, 39 and 42, per Orr and Lawton LJJ; and natural justice is not to be confused with a vague sense of unfairness, as Mr Collins submitted that the judge had confused it. But the remedy and the jurisdiction are not to be confined too rigorously by precedent, and I respectfully agree with the observation of Lord MacDermott LCJ in Reg (Burns) v County Court Judge of Tyrone [1961] NI 167, 172:

"Though the main branches of certiorari have long since been shaped and fixed by precedent, they are still alive and capable of growth in the furtherance of their established purposes."

But as Orr LJ pointed out, fraud and perjury cases illustrate circumstances in which fresh evidence may be admissible in support of an application for certiorari; and I am of the opinion, in agreement with the judge, that the denial of a hearing to the applicant, in the circumstances proved by evidence accepted as true, is a defect or irregularity which entitles and requires the High Court to put it right. It is a breach of a basic rule of natural justice, incorporated in the Immigration Appeals (Procedure) Rules 1972, which vitiates the proceedings before the adjudicator, and no less a breach because the adjudicator when making his decision did not know of the facts which constituted the breach. I do not need to get support for that conclusion from the opinion of Cooke J in the New Zealand case of Daganayasi v Minister of Immigration [1980] 2 NZLR 130, on which Sir Charles Fletcher-Cooke relied, that a mistake of fact which misleads a decision-making body (in that case a minister) into producing an injustice may be a ground for judicial review. I would prefer to join the other two judges in that case, Richmond P and Richardson J, in leaving open the question Cooke J answered in what they described as a difficult and developing area of the law as yet in a far from settled state. I am content to accept what Taylor J said at the conclusion of a judgment in which I can detect no confusion or error:

"It seems to me that there is a clear distinction to be drawn between the situation in the present case -- which must be rare indeed -- where there has been no oral hearing at all in a case which gravely affects the applicant's future, and cases on the other side of the line where there has been an oral hearing but subsequently some further evidence has emerged which it is suggested might have made a difference to the outcome. In the former case, which is the present case, it seems to me that there has been a basic failure in the rules of natural justice. There has been an irregularity in the sense that a wholly different type of determination has been carried out, namely, a determination purely on paper evidence as against a full oral hearing."

I cannot put it better than that, and I would only add that there was nothing wrong with the adjudicator's decision, which may turn out to be right after all, on the accepted facts, but there was a fundamental flaw in the decision-making process. I would affirm the judge's judgment and dismiss the appeal, but must not be taken to be giving any encouragement to immigrants to absent themselves when their appeals come up for an oral hearing and then to blame their advisers or the adjudicator for dismissing their appeals.

Judgment Two:

FOX LJ. The essential features of the case are these. The applicant was entitled to an oral hearing before the adjudicator if she asked for one. She did ask for one. She did not receive an oral hearing; her appeal was dismissed in her absence without one. The fact that she did not get an oral hearing was not through any fault of her own or of the adjudicator. Mr Collins, rightly anxious to avoid unfairness to the applicant but equally anxious that the allowing of this appeal should not lead to abuse by the unscrupulous, would not be unhappy if we were to interpret what occurred as an irregularity of the adjudicator and allow the appeal accordingly. I do not think however that we can so deal with the matter. It would be quite contrary to the facts. The adjudicator did nothing wrong and there is no irregularity by him. Indeed, I do not see that he could have done other than he did. He was told by the applicant's representatives (the advisory service) that they had no instructions and they invited the adjudicator to deal with the case on the documents alone. Mr Collins submits that judicial review is only available in three familiar cases, namely (1) error of law on the face of the record; (2) acts in excess of jurisdiction; and (3) order obtained by fraud or perjury or collusion. There is here no ex facie error of law. And there was no fraud, perjury of collusion. But it has been accepted that an order made contrary to natural justice is in excess of jurisdiction and void: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 and Attorney-General v Ryan [1980] AC 718, though the precise categorisation may need revision: see Council of Civil Service Unions v Minister for the Civil Service [1984] 3 WLR 1174. What happened here was that, without any fault by the adjudicator or the applicant, the adjudicative process failed and the applicant was wholly denied the oral hearing which she had asked for and to which she was entitled. Itis difficult to regard that as other than a deprival of justice. In Reg v Leyland Justices, Ex parte Hawthorn [1979] QB 283, the trial was conducted by the court with complete propriety. The applicant was found guilty of a motoring offence by the justices. After the trial it was discovered that the police were well aware of witnesses whom they did not call and whose existence they did not disclose to the defence. Whether it was necessary to deal with the matter by prerogative order at all or whether it could have been dealt with by a consent application for leave to appeal out of time I need not consider. Certiorari was granted. The Divisional Court recognised that there was no error by the tribunal. There was simply an error by the prosecutors. Lord Widgery CJ said, at p 286D:

"Consequently, amongst the arguments to which we have listened an argument has been that this is not a certiorari case at all on any of the accepted grounds."

Nevertheless the Divisional Court accepted that if fraud, perjury and collusion, none of which affects the tribunal itself, are sufficient for certiorari, it could not be said that the failure of the prosecution to disclose the names of the witnesses was not in the same category if it prevents the tribunal from giving the defendant a fair trial. In that case, as in this, there was denial of justice by the conduct of the proceedings not through any failure by the tribunal or by the applicant but from another source. Again, in Reg v Blundeston Prison Board of Visitors, Ex parte Fox-Taylor [1982] 1 All ER 646, there had been no failure by the Board of Visitors. The failure was by the prison authorities to inform the accused of the existence of the witness and that failure led to the failure in the investigating process by the prison visitors. Apart from the point which I have mentioned in relation to the alternative remedy in Reg v Leyland Justices, Ex parte Hawthorn [1979] QB 283 I see no reason to suppose that these two cases were wrongly decided. If a breach of the rules of natural justice is to be a ground for certiorari I do not see why one should stop short at a breach caused in a particular way. The real question is whether there was, in truth, a breach of the rules of natural justice. That requires in each case an examination of the facts, including the conduct of the applicant. If one concludes that there was, I do not see why the court cannot grant certiorari if it thinks fit, even if the tribunal itself did not err. It seems to me that the present case does not take the principle beyond that accepted in Reg v Leyland Justices, Ex parte Hawthorn and Reg v Blundeston Prison Board of Visitors, Ex parte Fox-Taylor [1982] 1 All ER 646 and since it seems to me that there has in fact been a denial of natural justice for which the applicant was in no way responsible I think that the decision of Taylor J was correct. The case is not on all fours with any of the preceding cases but this is not a static branch of the law: see for example the observations of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 WLR 1174, 1196, and if there has been a failure of natural justice I think that the court should correct it. I should however emphasise that we are dealing with the case of a wholly inocent applicant. If the failure of the adjudicative process had been the consequence of a failure or misconduct by her, different considerations would apply. I would dismiss the appeal.

Judgment Three:

PURCHAS LJ. The facts against which this appeal is brought by the Secretary of State are fully set out in the judgments already delivered and need not be repeated here. The question raised by this appeal may be shortly stated but is of importance. I would pose it in this form: "In the presence of an established failure by an inferior statutory body to hear and determine in accordance with natural justice a question referred to it under statutory powers, are the courts powerless to give a remedy to the persons aggrieved unless it can be shown that the statutory body itself has been at fault?" The framing of the question in this manner involves of necessity that the failure has arisen from some cause extraneous to the tribunal itself. This poses a second question, namely: "Is there a distinction to be drawn from the nature of that cause, eg, acts or omissions on the part of the statutory body, by the applicant, by the respondent, or the intervention of some supervening outside factor?" In my judgment it is important to distinguish between the determination of the scope of the jurisdiction and restrictions arising from precedent in the exercise of judicial discretion within that jurisdiction. Effective judicial control would, in my view, call for maximum scope to be given to the jurisdiction itself in association with flexibility of discretion within certain guidelines as might be established: see the judgment of Sir Wilfrid Greene MR in Rex v Stafford Justices, Ex parte Stafford Corporation [1940] 2 KB 33, 43:

"Now, in my opinion, the order for the issue of the writ of certiorari is, except in cases where it goes as of course, strictly in all cases a matter of discretion. It is perfectly true to say that if no special circumstances exist, and if all that appears is a clear excess of jurisdiction, then a person aggrieved by that is entitled ex debito justitiae to his order. That merely means this, in my judgment, that the court in such circumstances will exercise its discretion by granting the relief. In all discretionary remedies it is well known and settled that in certain circumstances -- I will not say in all of them, but in a great many of them -- the court, although nominally it has a discretion, if it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a particular way, and if a judge at a trial refuses to do so, then the Court of Appeal will set the matter right. But when once it is established that in deciding whether or not a particular remedy shall be granted the court is entitled to inquire into the conduct of the applicant, and the circumstances of the case, in order to ascertain whether it is proper or not proper to grant the remedy sought, the case must in my judgment be one of discretion."

In the instant case it is accepted that through no fault of the applicant or of the adjudicator, the applicant's case was never put before the adjudicator either in the form of written submissions or, as the applicant had requested at an earlier stage, in the form of oral submissions. Nor for the purposes of this appeal can it be said that the adjudicator was wrong in proceeding to determine the matter on the documents provided by the Secretary of State.It is common ground that in the instant appeal there was a failure to observe the basic principle of natural justice "audi alteram partem" and that this was caused by shortcomings on the part of the agents, UKIAS. For the purpose of this appeal we were invited to ignore any suggestion that the applicant herself might have contributed to the failure through what has been described during argument as "inertia." The problem, therefore, becomes neatly defined. The principle of audi alteram partem is one of the most fundamental concepts of natural justice known to the law. It may be excessive to have resort to the "Garden of Eden" as Fortescue J did in Rex v Cambridge University (1723) 1 Str 557, 567, but the whole history of natural justice demonstrates the fundamental importance of this principle. Nor in this case is the court required to consider the distinctions between judicial and other administrative acts, since the statute and regulations made thereunder provide that the applicant is entitled to a hearing; see rule 12 of the Immigration Appeals (Procedure) Rules 1972, already cited by Stephenson LJ. The question is one of jurisdiction only. It is accepted that if the jurisdiction exists this is a case in which the court ought to exercise its discretion and grant relief. Mr Collins, who appeared for the adjudicator, submitted that the court's powers to grant an order for certiorari are restricted to certain defined situations which he listed under three categories: (i) errors of law on the face of the record; (ii) acts in excess of jurisdiction, with which he included a failure to act within the rules of natural justice; (iii) decisions obtained by fraud, perjury or collusion. There are a number of difficulties with this submission. Although the prerogative writs stemmed from the right assumed by the Royal Courts to "examine the proceedings of all jurisdictions erected by Acts of Parliament": see per Holt CJ in Rex v Glamorgan Inhabitants (1700) 1 Ld Ray 580, the areas over which the courts regularly exercise their powers of review extend far beyond these original boundaries. In the recent case of Council of Civil Service Unions v Minister for the Civil Service [1984] 3 WLR 1174, 1196, Lord Diplock said:

"Judicial review has I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call 'illegality,' the second 'irrationality' and the third 'procedural impropriety.' That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionalty' which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice."

The tenor of this speech runs contrary to Mr Collins' submission that the list of categories is closed. The "dramatic and indeed radical change in the scope of judicial review" was also described in the speech of Lord Roskill, at p 1199G. For my part I cannot accept that this fundamental jurisdiction can be restrained in an arbitrary or general way and believe that this is recognised by Lord Diplock in the passage just cited. There are, of course, well-defined areas in which the courts will not interfere, such as that under review in the House of Lords decision just mentioned; but these are not relevant in the instant appeal. Another difficulty with which Mr Collins is faced is that he is obliged to submit that Reg v Leyland Justices, Ex parte Hawthorn [1979] QB 283, is wrongly decided.He may also have overlooked the judgment of Lord Widgery CJ with whom the other members of the Divisional Court agreed, in Reg v Immigration Appeal Tribunal, Ex parte Jusoh (unreported), 28 July 1976. In that case the applicant was refused leave to appeal from the adjudicator because the grounds of appeal in fact considered by the tribunal were correctly thought to raise no arguable point of law: see rule 14 of the Immigration Appeals (Procedure) Rules 1972. There had, however, been submitted another set of grounds of appeal which for reasons never determined were not supplied to the tribunal, per Lord Widgery CJ, at p 7 of the transcript:

"The normal practice, and I think the one we ought to follow here, is that if it is once accepted, as it is, that there was an error in the procedure, and that the proper grounds of appeal were never before the tribunal, I think the proper answer myself is that certiorari should go to quash the refusal of the application for leave to appeal, thus clearing the way for a further application for leave to appeal."

The final difficulty in Mr Collins' submissions is to justify what might be called his third "special category." In these cases the decision-making body has behaved with absolute propriety and no patent error appears on the face of the record. Yet there has occurred a breach of the rules of natural justice induced by the conduct of some third party. It is not easy to see why in logic the availability of the remedy should depend upon the quality of the conduct of the third party. With respect to the able argument of Mr Collins, I cannot agree that in the presence of an established breach on the part of an inferior tribunal of the rules of natural justice, eg, a failure to obey the principle "audi alteram partem," the court has no jurisdiction to grant an order of certiorari, notwithstanding that the failure has arisen through no fault of the tribunal itself. Whether or not the court should exercise its discretion will depend on ascertaining the cause of the failure in relation to the conduct of the applicant. Cases in which the question of jurisdiction arose in relation to a decision made by an inferior tribunal have been mentioned by Stephenson LJ: Reg v Gillyard, 12 QB 527, was a case in point. The facts of this case have already been described by Stephenson LJ; but I venture to cite in slightly more detail the judgment of Lord Denman CJ, at pp 529-530:

"He (the maltster) urges that he ought not to be called upon to purge himself by affidavit of an indictable offence, and that certiorari does not lie in this case. Such an answer clenches the accusation. Is this conviction, then, to stand because some other court may have jurisdiction? Suppose some person had personated Gillyard, and the conviction had been procured by such a trial; must we say that such a shadow shall prevail? In so holding we should be doing away with a most useful jurisdiction. If it were necessary, we ought, in such a case, to create a precedent, in order that persons who have set the law in motion for fraudulent purposes may understand that, if they are charged with such an offence, they will be expected to answer the accusation."

The attitude of the court in Reg v Gillyard is reflected in the more recent cases of Reg v Leyland Justices, Ex parte Hawthorn [1979] QB 283 and Reg v Blundeston Prison Board of Visitors, Ex parte Fox-Taylor [1982] 1 All ER 646, to which reference has already been made by Stephenson LJ. In the Leyland case evidence favourable to the defendant in the magistrates' court had been withheld by the prosecution. I cite one short extract from the judgment of Lord Widgery CJ [1979] QB 283, 286:

"But the problem -- and one can put it in a sentence -- is that certiorari in respect of breach of the rules of natural justice is primarily a remedy sought on account of an error of the tribunal, and here, of course, we are not concerned with an error of the tribunal; we are concerned with an error of the police prosecutors. Consequently, amongst the arguments to which we have listened an argument has been that this is not a certiorari case at all on any of the accepted grounds.We have given this careful thought over the short adjournment because it is a difficult case in that the consequences of the decision either way have their unattractive features.However, if fraud, collusion, perjury and such like matters not affecting the tribunal themselves justify an application for certiorari to quash the conviction, if all those matters are to have that effect, then we cannot say that the failure of the prosecution which in this case has prevented the tribunal from giving the defendant a fair trial should not rank in the same category."

With respect to the late Lord Widgery I would venture to comment that the correct approach should have been that the tribunal had failed to try the case according to the rules of natural justice but through no fault of theirs. The fault lay with the prosecution. A further step along the path was taken by Phillips J in Reg v Blundeston Prison Board of Visitors, Ex parte Fox-Taylor [1982] 1 All ER 646, 649-650:

"Certiorari in cases of this kind is based on a failure by the adjudicating body. As has been pointed out, there has been no failure by the board of visitors. The failure as I have found is by the authorities of the prison. Therefore, it can be said it would be pushing certiorari very far, he would say too far, away from its essential base, which must be a failure of the adjudicating authority going to jurisdiction. The answer to that, I think, is that that is precisely what the Divisional Court in Leyland [1979] QB 283 did, justifying it for the reasons I have given. In effect, as I understand what is said is this: that albeit the failure was by the prosecution in that case it led to a failure of the process of the adjudicating justices, albeit they were not responsible for it, nor did they cause it. But none the less, proceedings before them were vitiated and their jurisdiction impugned. It does not mean that this case takes the principle any further, once one accepts, as I have found, that there was a breach of natural justice whereby the existence of a potentially relevant witness was not brought to the attention of the board of visitors."

This approach also supports the comments made by this court when acknowledging the possiblitity (but not deciding) that the court would grant an order of certiorari upon judicial review even though the failure arose from the acts of the applicant himself: see Reg v Immigration Appeals Tribunal, Ex parte Enwia [1984] 1 WLR 117, to which reference has been made by Stephenson LJ. Mr Collins further submitted that if the judge's judgment were upheld it would have widespread and unwelcome repercussions -- the so-called floodgates argument. This submission was robustly dealt with by the judge in the extract from his judgment already cited by Stephenson LJ. However, I would like to add that the spectre to which he refers can be exorcised by two restrictions inherent in the judicial review process. First, the breach of natural justice must first be established within the well-known criteria laid down in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, which appear in the passages cited in the judge's judgment. This distinguishes cases such as Reg v West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd [1974] QB 24. Secondly, even where jurisdiction exists as a result of an established failure on the part of an inferior tribunal to achieve natural justice, the court will not exercise its discretion to grant relief if the conduct of the applicant has conduced to that failure or if other conditions exist in which it would not be proper for the court to exercise its discretion to grant an order of certiorari. In the instant appeal there are no reasons to inhibit the exercise of discretion in the applicant's favour and in my judgment the court has jurisdiction to grant the relief sought. I would therefore endorse the reasoning of the judge in his lucid and careful judgment, and agree that this appeal should be dismissed.

DISPOSITION:

Appeal dismissed with costs in Court of Appeal. Legal aid taxation of applicants' costs. Leave to appeal refused. 21 February 1985. The Appeal Commitee of the House of Lords (Lord Fraser of Tullybelton, Lord Roskill and Lord Bridge of Harwich) allowed a petition by the Secretary of State for leave to appeal.

SOLICITORS:

Treasury Solicitor; Egerton, Sandler, Summer & Co