R v. Secretary of State for the Home Department, Ex parte Al-Mehdawi

R v Secretary of State for the Home Department, ex parte Al-Mehdawi

COURT OF APPEAL, CIVIL DIVISION

[1990] 1 AC 876, [1989] 1 All ER 777, [1989] Imm AR 125

Hearing Date: 25, 26 OCTOBER, 9 NOVEMBER 1988

9 November 1988

Index Terms:

Natural justice -- Hearing -- Duty to hear parties etc -- Immigration adjudicator -- Applicant deprived of hearing through negligence of his own solicitors -- Adjudicator not at fault -- Whether breach of rules of natural justice -- Whether adjudicator's decision subject to judicial review.

Precedent -- Court of Appeal -- Binding effect of previous decisions of court -- Power of court to depart from previous decision -- House of Lords deciding appeal on different ground from that argued below -- Whether Court of Appeal's decision in that case binding on another division of the Court of Appeal.

Held:

The respondent was an Iraqi student who overstayed his leave to remain in the United Kingdom. When he was served with a notice of the Secretary of State's decision to deport him he instructed solicitors to lodge an appeal. When a date of hearing for the appeal was fixed the solicitors wrote to notify him of the date but negligently sent the letter to the wrong address and the respondent never received the letter. The adjudicator subsequently dismissed the appeal on the papers since neither the respondent nor his solicitors appeared before him. The respondent applied to have the adjudicator's decision quashed. The judge held that he was bound by a previous decision of the Court of Appeal which decided that certiorari ought to be granted where the negligence of an applicant's solicitors deprived him of an oral hearing. The judge accordingly granted certiorari. The Secretary of State appealed, contending (i) that the Court of Appeal was not bound by its previous decision because when that case had gone to the House of Lords on appeal the House had decided the appeal on a different ground and had held that the issue determined below did not arise for decision and (ii) that judicial review was not available as a guarantee to a litigant against any perceived unfairness regardless of who was at fault since its purpose was to check procedural impropriety in the decision-making process and control errors by the person making the decision. Held -- (1) Where the House of Lords decided that an issue which was argued in the Court of Appeal did not arise for decision on appeal to the House and expressed no view as to the soundness or otherwise of the Court of Appeal's reasoning on that issue, the Court of Appeal's decision on that issue was not binding on another division of the Court of Appeal Balabel v Air-India [1988] 2 All ER 246 applied R v Diggines, ex p Rahmani [1985] 1 All ER 1073 considered. (2) Since the respondent had been deprived of a hearing by the adjudicator solely because of his solicitor's negligence the decision-making process was fundamentally flawed by a breach of the rules of natural justice even though neither the respondent himself nor the adjudicator were at fault. The respondent was therefore entitled to judicial review of the adjudicator's decision dismissing his appeal. The Secretary of State's appeal would accordingly be dismissed dictum of Stephenson LJ in R v Diggines, ex p Rahmani [1985] 1 All ER 1073 at 1082 applied.

Notes:

For the principles of natural justice and certiorari for breach of those principles, see 1 Halsbury's Laws (4th edn) paras 64, 74, 80, 83, 87, and for cases on the subject, see 1(1) Digest (Reissue) 200--201, 1172--1176 and 16 ibid 388--435, 4237--4797. For the binding effect of Court of Appeal decisions, see 26 Halsbury's Laws (4th edn) para 578, and for cases on the subject, see 30 Digest (Reissue) 269--273, 763--793.

Cases referred to in the Judgment:

Balabel v Air-India [1988] 2 All ER 246, [1988] Ch 317, [1988] 2 WLR 1036, CA. Khan v Secretary of State for the Home Dept, Deen v Secretary of State for the Home Dept [1987] Imm AR 543, CA. Minter v Priest [1930] AC 558, [1930] All ER Rep 431, HL rvsg [1929] 1 KB 655, CA. R v Blundeston Prison Board of Visitors, ex p Fox-Taylor [1982] 1 All ER 646, DC. R v Diggines, ex p Rahmani [1985] 1 All ER 1073, [1985] QB 1109, [1985] 2 WLR 611, CA affd on other grounds [1986] 1 All ER 921, [1986] AC 475, [1986] 2 WLR 530, HL. R v Gillyard (1848) 12 QB 527, 116 ER 965. R v Immigration Appeal Tribunal, ex p Temel [1988] CA Transcript 344. R v Leicester Recorder, ex p Wood [1947] 1 All ER 928, [1947] KB 726, DC. R v Leyland Magistrates, ex p Hawthorn [1979] 1 All ER 209, [1979] QB 283, [1979] 2 WLR 28, DC. R (Burns) v Tyrone County Court Judge [1961] NI 167, NI DC. Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293, [1944] KB 718, CA affd [1946] 1 All ER 98, [1946] AC 163, HL.

Cases cited in the Judgment:

Birkett v James [1977] 2 All ER 801, [1978] AC 297, HL. Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935, [1985] AC 374, HL. Davis v Johnson [1978] 1 All ER 1132, [1979] AC 264, HL. O'Reilly v Mackman [1982] 3 All ER 1124, [1983] 2 AC 237, HL. R v Crown Court at Knightsbridge, ex p Goonatilleke [1985] 2 All ER 498, [1986] QB 1, DC. R v Immigration Appeal Tribunal, ex p Enwia, R v Immigration Appeal Tribunal, ex p A S [1983] 2 All ER 1045, [1984] 1 WLR 117, CA. R v Secretary of State for the Home Dept, ex p Yeboah, R v Secretary of State for the Home Dept, ex p Draz [1987] 3 All ER 999, [1987] 1 WLR 1586, CA.

Introduction:

Appeal The Secretary of State for the Home Department appealed against the decision of Macpherson J hearing the Crown Office list on 23 November 1987 (i) granting an application by the respondent, Shahib Al-Mehdawi, for judicial review by way of an order of certiorari to quash the determination of an immigration adjudicator dated 5 December 1985 whereby he dismissed an appeal by the respondent against the decision of the Secretary of State issued on 12 March 1985 to deport him pursuant to s 3(5)(a) of the Immigration Act 1971 and (ii) ordering that the matter be remitted to an adjudicator for a further hearing. The facts are set out in the judgment of Taylor LJ.

Counsel:

John Laws and David Pannick for the Secretary of State. Sir Charles Fletcher-Cooke QC and George Warr for the respondent.

Judgment-READ:

Cur adv vult 9 November. The following judgments were delivered. PANEL: O'CONNOR, NICHOLLS AND TAYLOR LJJ

Judgment One:

TAYLOR LJ (delivering the first judgment at the invitation of O'Connor LJ). This is an appeal by the Secretary of State for the Home Department from a decision of Macpherson J on 23 November 1987. The judge granted an order of certiorari to quash the determination of an adjudicator dismissing an appeal by Shahib Al-Mehdawi (the respondent) against the Secretary of State's decision to deport him. The respondent was born in Iraq on 29 April 1956. In August 1977, aged 21, he arrived in the United Kingdom as a visitor. Between 1977 and 1984 his leave to remain was extended from time to time to enable him as a student to pursue various training courses. He was a conspicuously unsuccessful student and eventually, on 4 May 1984, he was refused a further extension of time. Despite that refusal, the respondent failed to leave. Accordingly, on 12 March 1985 the Secretary of State gave notice of his decision to deport the respondent pursuant to s 3(5)(a) of the Immigration Act 1971. The respondent instructed solicitors, Messrs Bowman Ziadie & Co. They lodged a notice of appeal on 28 March 1985. On the same day they wrote to the respondent at his address in Edinburgh to inform him of the step they had taken. On 23 September Bowman Ziadie wrote to him again to tell him that the hearing before an adjudicator was fixed for 21 November. However, most unfortunately and negligently, their letter was sent, not to the respondent's Edinburgh address, but to his former address in Birmingham. The letter did not reach him. It is common ground (a) that he never knew of the hearing before it was so far passed that he not only missed attending, but was too late to appeal, and (b) that Bowman Ziadie took no further steps after their misdirected letter and before the hearing. So, on 21 November neither the respondent nor anyone from Bowman Ziadie appeared before the adjudicator. A representative of the Home Secretary was there and invited the adjudicator to determine the appeal on the available documents. The adjudicator did so and dismissed the appeal. On 5 December he sent a copy of his decision to Bowman Ziadie. They wrote to the respondent telling him that any further appeal had to be lodged by 22 December. But, again, their letter was wrongly addressed to Birmingham, so no appeal was lodged. On 28 April 1986 the Secretary of State signed a deportation order directing the respondent's removal to Iraq. On 23 May he was arrested and detained in Perth prison. There followed extended representations and negotiations involving the Home Office and, on the respondent's behalf, a second firm of solicitors in Scotland and a member of Parliament. Eventually, via the respondent's third and present firm of solicitors, an application was made for judicial review on 5 February 1987. The case for the respondent (the applicant before Macpherson J) was that, owing to the negligence of his solicitors, he had been deprived of an oral hearing of his appeal to which he was entitled by the rules of natural justice and accordingly the decision should be quashed. He relied on the decision of this court in R v Diggines, ex p Rahmani [1985] 1 All ER 1073, [1985] QB 1109. Before Macpherson J counsel for the Secretary of State accepted that, unless he could show fault on the part of the respondent personally, the judge was bound by this court's decision in Rahmani's case and should grant relief. The judge was not prepared to find the respondent had been at fault. Accordingly, he granted certiorari. On this appeal, counsel's first submission for the Secretary of State is that this court is not bound by its decision in Rahmani's case in view of the ultimate ruling when the case went to the House of Lords (see [1986] 1 All ER 921, [1986] AC 475). There it was held that the issue determined by me at first instance and by the Court of Appeal thereafter did not arise on a true view of the relevant facts and law. Shortly, the facts of Rahmani's case were as follows. The applicant had been refused leave for herself and her children to remain in the United Kingdom. She appealed to an adjudicator. She was represented by the United Kingdom Immigrants Advisory Service, but by the date of the hearing they were unable to contact her since although they had been given her new address they had failed to record it. By letter to the adjudicator they said they had no instructions and invited him 'to decide the case in such manner as he may deem proper'. In purported exercise of the power in r 12 of the Immigration Appeals (Procedure) Rules 1972, SI 1972/1684, the adjudicator dismissed the appeal without a hearing. At first instance I held that there had been a breach of the rules of natural justice in that the applicant had been denied a hearing. Although that breach was due to the negligence of her own advisers, she was nevertheless entitled to relief. The Court of Appeal upheld the decision for the same reasons. Neither before me nor the Court of Appeal was any criticism made of the adjudicator. However, in the House of Lords, this important issue of principle was held not to have arisen because the true and simple ground for granting the applicant relief was that the adjudicator should not have determined the case under r 12, there being nothing to justify a finding under para (c) of that rule that no person was authorised to represent the applicant at the hearing. In these circumstances, counsel for the Secretary of State contends that the true ratio of the case was the simple one propounded in the House of Lords. The more general point of principle decided below did not arise for decision in Rahmani's case. He submits the case must be considered as one continuous piece of litigation. Therefore, although the views expressed on the issue of principle in this court are of high persuasive value, they cannot be regarded as the ratio of the case and thus binding, since they were unnecessary to its decision. Counsel referred to Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293, [1944] KB 718, the leading authority on the principle of stare decisis in this court. Lord Greene MR stated the principle thus ([1944] 2 All ER 293 at 300, [1944] KB 718 at 729--730):

'On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule (two of them apparent only) are those already mentioned which for convenience we here summarise: (i) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (ii) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot in its opinion stand with a decision of the House of Lords. (iii) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.'Counsel submits that those exceptions are not exhaustive. In particular, it would seem that Lord Greene MR's principles were related to final decisions of the Court of Appeal. They may well be inapt where the House of Lords, in giving the final decision of a case, expressly indicates that, on the true facts, the issue resolved by the Court of Appeal did not require to be decided. Alternatively, such a case may be akin to Lord Greene MR's exception (ii). In Rahmani's case the House of Lords went further than simply to say the issue below did not arise for decision. Lord Scarman, with whose speech all the other law Lords agreed, said ([1986] 1 All ER 921 at 922--923, [1986] AC 475 at 478):

'However, the parties and the two courts below proceeded on the basis that r 12 did apply. At the outset of the hearing before your Lordships it became obvious that there must be a serious doubt as to the applicability of r 12 to this case. Your Lordships raised the point with counsel for the adjudicator who very fairly said at once that, if your Lordships should be disposed to the view that r 12 does not apply in this case, he would not argue for the contrary view. He had come to argue the question of principle. Counsel for the immigrants was equally eager to argue the question of principle but left the matter in your Lordships' hands. Thereupon and with the assistance of counsel, your Lordships examined the terms of the rule and the facts of the case and considered that in the circumstances the rule did not apply. Your Lordships have not, therefore, considered, nor have they heard arguments on, the point of principle which was the ground of decision in both courts below. Accordingly, I express no opinion on the point. I must not be understood to have indicated even a provisional view on the soundness or otherwise of the alleged principle. Indeed it would be dangerous, in my view, to discuss the point save in a case where the circumstances and the facts require it to be decided.'It would be strange indeed if, despite those final words, the decision of this court is to be regarded as binding authority on the point of principle. Counsel for the respondent referred to R v Immigration Appeal Tribunal, ex p Temel [1988] CA Transcript 344. There, Purchas LJ, referring to Rahmani's case, said:

'The matter, we are told, went to the House of Lords, who granted leave to appeal, which was refused by this court, presumably because of the important issue of principle. It is perhaps disappointing that their Lordships did not in the event deal with this point but disposed of the appeal on a purely procedural technicality. The position, however, is that the ultimate authority at the moment which binds this court is Rahmani's case and the judgments delivered in it on this particular topic.'It would not appear that any argument was addressed to the court as to the precise effect of the House of Lords' decision on the binding force of this court's ruling. Indeed, the opening words of the passage I have cited ('The matter, we are told, went to the House of Lords') suggest that the full report of the House of Lords' decision may not even have been cited. Counsel also helpfully referred to an essay contained in Sir Arthur Goodhart's Essays in Jurisprudence and the Common Law (1931) entitled 'Determining the Ratio Decidendi of a Case'. He pointed to a number of passages suggesting that the ratio of a court's decision remained binding even if the facts on which the court based it subsequently turned out to be wrong. But here it is not merely that knowledge subsequent and extraneous to the proceedings shows the facts to be wrong: the House of Lords in the very case, giving its final opinion, has ruled that the issue determined below did not arise for decision. In these circumstances I consider that, although the reasoning of the Court of Appeal in Rahmani's case is of powerful persuasive influence, this court is not bound by it. Support for that view is afforded by a passage from the judgment of this court in Balabel v Air-India [1988] 2 All ER 246, [1988] Ch 317 which, whilst I gave it, is strengthened by the agreement of Lord Donaldson MR and Parker LJ. The case is concerned with the extent and scope of legal professional privilege. The relevant passage is ([1988] 2 All ER 246 at 250--251, [1988] Ch 317 at 325--326):

'In particular [counsel for the appellant] contends that the decision of the Court of Appeal in Minter v Priest [1929] 1 KB 655 is in his favour and is binding on this court. That was a defamation case. The respondents' solicitor was approached to assist in obtaining a loan for the deposit on a contemplated purchase of a house, the intention being that, if the loan was obtained, the proposed purchasers would employ the respondent to complete the purchase. The respondent was alleged to have defamed the appellant in the course of his interview with the proposed purchasers and the issue was whether one of the latter was entitled to claim privilege from disclosing what happened at the interview. The decision of the Court of Appeal was on the footing that what passed at the interview was between clients and a solicitor acting in his professional capacity and within the ordinary scope of his business as a solicitor. The court upheld the claim to privilege. The House of Lords reversed the decision on the ground that the respondent was not acting as a solicitor at the relevant time because, so far from undertaking the duty of a solicitor on the proposal made to him, the respondent made a counter-proposal involving a malicious scheme from which he was to profit jointly with the proposed purchasers (see [1930] AC 558, [1930] All ER Rep 431). Accordingly, the dicta both in the Court of Appeal and in the House of Lords touching on the extent of legal professional privilege where the relationship of solicitor and client does exist were not essential to the determination of the case, and in my judgment are not binding on this court. Nevertheless, they are of strong persuasive authority.'Should this case go further on the main issue, as seems likely, it may be thought appropriate for their Lordships to consider stare decisis in the context of cases such as Balabel's case, the present case and no doubt others in which a decision of their Lordships' House may neither overrule nor be on all fours with the decision of this court in the same case.

Before turning to the main issue of principle on this appeal, it is convenient to clear the ground by dealing with a secondary submission made by counsel for the respondent in the alternative. It is that, as in Rahmani's case, the adjudicator fell foul of r 12 which carries the same number and substance in the 1984 rules applicable here as in those of 1972 which applied in Rahmani's case. Rule 12(1)(c) provides:

'An appellate authority may determine an appeal without a hearing if . . . (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.'In Rahmani's case the adjudicator (by chance the same adjudicator as here) expressly stated in his determination that it was made under r 12, i e without a hearing. Here, counsel submits that the same situation arose and the same adjudicator dealt with it in the same way, that is to say without a hearing. The case can therefore, he says, be decided in the respondent's favour on the same ground as founded the final decision in Rahmani's case. In my judgment, that argument is untenable on the evidence. The determination of the adjudicator expressly states:

'3. Although an oral hearing of his appeal against this decision was requested, neither the [respondent] nor his representative appeared at the hearing [counsel for the Home Secretary] asked me therefore to determine the appeal on the basis of the available documents. Before doing so, however, he drew my attention to paragraph 156 of HC 169 [Statement of Changes in Immigration Rules of 9 February 1983 (HC Paper (1982--83) no 169], which sets out the factors to be taken into account by the Secretary of State in considering whether to give effect to a deportation order. [Counsel] contended that all these factors had in fact been taken fully into account in this case, and pointed out that the appellant had overstayed his leave to remain on no less than 4 occasions during the 8 years he had been here. No compassionate circumstances had been advanced in support of the appeal.'From that, it is clear that there was a hearing, albeit in the absence of the respondent but physically attended by a representative of the Home Secretary. The adjudicator was not acting under r 12, but r 34(2) which permitted him to proceed with the hearing of an appeal in the absence of the respondent if satisfied that the requisite notice of the time and place of the hearing had been given and no explanation of the respondent's absence had been furnished. The provisions as to notice are set out in rr 34(5)(a), 44(1) and 26(1). It is unnecessary to set them out as it is common ground here that the notice given complied with them. In my judgment, therefore, there is no substance in this subsidiary argument on behalf of the respondent. This leaves as the main, indeed only, issue the question of principle considered by this court in Rahmani's case. Counsel for the Secretary of State concedes that if the reasoning of this court in that case is sound, it is determinative of the present appeal. I confess at the outset that I adhere to the views I expressed in Rahmani's case which were approved by this court. Since all three members of the court gave reasoned judgments after considering the arguments and the authorities, it is tempting simply to adopt them. However, counsel for the Secretary of State in this case did not appear in Rahmani's case and in deference to his forceful submissions, which were not identical with those advanced there, I set out my reasons for remaining unrepentant.

The respondent's contention, as upheld by this court in Rahmani's case, is formulated in the Secretary of State's skeleton argument in these terms (at para 2):

'. . . a decision of a public authority, which is within the power conferred by statute and has been reached without procedural impropriety or irregularity on its part, can, nevertheless, be quashed upon judicial review if the exercise of the power has--without fault on the part of the complainant--resulted in an infringement of natural justice.'That formulation is, however, not wholly accurate. The respondent contends that there was procedural irregularity in the hearing before the adjudicator although through no fault of his. The question, therefore, is whether judicial review lies only when the public authority, here the adjudicator, is at fault or also when, without his fault, the procedure is, in the event, seriously defective or irregular. Here, the respondent did not have an opportunity to put his case. Is his right to do so to be forfeited without fault on his part simply because there was also no fault by the adjudicator? The main submission of counsel for the Secretary of State is that the purpose of judicial review is to impose standards of decision-making and more particularly to control errors and departures from those standards by decision-makers. He submits that the respondent's case involves judicial review being available as a guarantee to a litigant against any form of unfairness in litigation regardless of who, if indeed anyone, is at fault. This would extend judicial review so far, he says, as to leave principles behind, particularly the principle requiring finality in litigation.

Referring to the authorities, counsel says that the main exceptions to the requirement of fault by the authority whose decision is impugned are cases of fraud or perjury (see R v Gillyard (1848) 12 QB 527, 116 ER 965, R v Leicester Recorder, ex p Wood [1947] 1 All ER 928, [1947] KB 726 and R (Burns) v Tyrone County Court Judge [1961] NI 167). To these, he concedes there must be added two further exceptional cases which he submits are grafted onto the main exception. Those are R v Leyland Magistrates, ex p Hawthorn [1979] 1 All ER 209, [1979] QB 283 and R v Blundeston Prison Board of Visitors, ex p Fox-Taylor[1982] 1 All ER 646. In the former case, the prosecution failed to disclose to the defence the existence of two material witnesses. In the latter, the prison authority likewise failed to bring possible witnesses to the attention of a prisoner in proceedings against him before the board of visitors. Counsel explains these cases as examples of misconduct by a party owing a public duty in the administration of justice. However, in the Leyland Magistrates case [1979] 1 All ER 209 at 210--211, [1979] QB 283 at 286 Lord Widgery CJ explained the grant of certiorari in the following terms:

'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 prosecutor which in this case has prevented the tribunal from giving the defendant a fair trial should not rank in the same category.'In Rahmani's case [1985] 1 All ER 1073 at 1087, [1985] QB 1109 at 1129 Purchas LJ, after quoting that passage, said:

'With respect to Lord Widgery CJ 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.'Whichever way it is expressed, the nub of the decision was that since there had been a failure of natural justice in the trial process, certiorari could and should go notwithstanding the absence of fault by the tribunal. Purchas LJ went on to quote with approval the reasoning of Phillips J in Ex p Fox-Taylor [1982] 1 All ER 646 at 649--650 to the like effect.

Counsel for the Secretary of State submitted that if negligence of his own advisers could entitle an applicant to a grant of certiorari and a rehearing of his case, Pandora's box would be wide open. He conjured up the possibility of certiorari where the applicant's lawyer failed to call a witness, failed to seek an adjournment, cross-examined incompetently or otherwise left the applicant aggrieved. It was, he said, neither logical nor workable to draw a distinction between a fundamental breach of natural justice which would justify certiorari and any other unfairness which would not. One must go the whole hog. If certiorari lies here, it must lie wherever litigation ends in unfairness however caused. I cannot accept this argument ad absurdum. It is true, as counsel says, that natural justice cannot be invoked to rectify every perceived unfairness. But, in the present case there was, owing entirely to the solicitors' negligence, a breach of a basic rule of natural justice, audi alteram partem. That was a fundamental flaw in the decision-making process. It is clearly distinguishable from situations within a proper process in which the applicant's case might have been conducted more skilfully or differently. No doubt difficult cases could arise near the borderline between a reviewable defect of process and a grievance without remedy. Where that line should be drawn is perhaps incapable of a universal definition and must depend on the circumstances of each case. The conduct of the applicant himself would clearly be a highly relevant factor. Both in Ex p Temel and in Khan v Secretary of State for the Home Dept [1987] Imm AR 543 the applicants failed because they were each held to have been responsible for the fact that they did not have a hearing. But in Khan's case (at 555) Bingham LJ said:

'If a procedural mishap occurs as a result of misunderstanding, confusion, failure of communication, or even perhaps inefficiency, and the result is to deny justice to an applicant, I should be very sorry to hold that the remedy of judicial review was not available.'In Rahmani's case [1985] 1 All ER 1073 at 1082, [1985] QB 1109 at 1122 Stephenson LJ said:

'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 that 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.'Whatever may be the position regarding an applicant who is himself at fault, I regard the present case, where no blame attaches to the respondent, as a clear case for relief. I would, accordingly, uphold the decision of Macpherson J and dismiss this appeal.

Judgment Two:

NICHOLLS LJ. I agree. Judgment By-3: O'CONNOR LJ

Judgment Three:

O'CONNOR LJ. I agree that this appeal should be dismissed for the reasons given by Taylor LJ.

DISPOSITION:

Appeal dismissed. Leave to appeal to the House of Lords granted.

SOLICITORS:

Treasury Solicitor; Burton Woolf & Turk (for the respondent).

This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.