R v. Secretary of State for the Home Department, Ex parte Erdogan Alp

R v The Secretary of State for the Home Department ex parte Erdogan Alp

Queen's Bench Division

[1986] Imm AR 324

Hearing Date: 21, 23 May 1986

23 May 1986

Index Terms:

Returning resident -- original indefinite leave secured by deception -- refusal of admission as returning resident on ground that exclusion was 'conducive to the public good' -- whether that phrase in HC 169 paragraph 85(b) has a restricted meaning such as it bears in s 15(3) of the Immigration Act 1971. Immigration Act 1971 ss 3(5)(b), 15(3); HC 169 paras 76, 85(b).

Judicial Review -- Practice and Procedure -- the obligation of the advisers of applicants moving for review to ensure that there is full, frank and candid disclosure of all material facts.

Held:

The applicant sought judicial review of an immigration officer's refusal to grant him leave to enter the United Kingdom as a returning resident. The refusal was based on the contention that the applicant's earlier indefinite leave had been obtained by deception: paragraphs 76 and 85(b) of HC 169 were applied. The applicant in his original name of Aciyan married in Turkey in 1967. He arrived in the United Kingdom as a visitor in 1976. He then married bigamously a British citizen. On the basis of that marriage he secured indefinite leave. In 1977 he left the United Kingdom with his British wife; he then left her in Cyprus and went to Turkey; in 1978 he sought entry with his Turkish wife and was refused, the nature of his second marriage then being known to the immigration authorities. He subsequently divorced his Turkish wife and changed his name to Erdogan Alp, in which name he obtained a new passport. He then remarried his British wife. They went to West Germany. In January 1983 the applicant entered the United Kingdom with his wife and two children, in his new name with his new passport. In 1984 he secured indefinite leave to remain. He went abroad. During his absence his wife approached the Home Office. When he sought to re-enter the United Kingdom in September 1984 he was refused admission. Counsel for the applicant appears to have challenged that there was deception by the applicant. He further submitted that the immigration officer misdirected himself in law in relying on paragraph 85(b) of HC 169. It was contended that the phrase 'conducive to the public good', in paragraph 85 had the restricted meaning that it bears in the context of s 15(3) of the Immigration Act 1971. Leave to move for judicial review was granted on the basis of affidavit evidence which in the event was shown not to be full and candid as to material facts. Held: 1. When the applicant in his new name presented his new passport to the Immigration Officer, effectively concealing his previous immigration history, he 'committed deception by concealment of an almost classic kind and dimension." 2. The phrase 'conducive to the public good' in paragraph 85 of HC 169 is not restricted to the meaning given to it in s 15(3) of the 1971 Act. 3. Leave to move for judicial review was obtained by deception of the Court. When the solicitors then acting for the applicant had studied the affidavit filed by the respondent, they should have advised strongly against the applicant proceeding with the application. 4. After argument the Court awarded costs against the solicitors then advising the applicant (for which see judgment of 23 May 1986, subjoined to this Report).

Cases referred to in the Judgment:

R v Kensington Income Tax Commissioners ex parte Princess Edmond de Polignac [1971] KB 486. Khawaja v The Secretary of State for the Home Department [1982] Imm AR 139.

Counsel:

A Azhar for the applicant. N Pleming for the respondent. PANEL: Hodgson J

Judgment One:

HODGSON J: In this case the applicant moves for judicial review by way of certiorari to quash the decision of an immigration officer, given on 4 September 1984, refusing the applicant leave to remain in the United Kingdom. In fact it was a refusal of entry. The decision was in these terms: "You have sought leave to enter the United Kingdom on the ground that you had an indefinite leave to enter/remain in the United Kingdom when you left and that you have not been away longer than two years, but this is not conclusive in your favour. I am satisfied that the leaves given on the 16.1.83 and subsequently on 30.3.83 and 12.3.84 by the Home Office were obtained by deception. Furthermore, as a result of your conduct as evidenced by this deception, it is undesirable to give you leave to enter and in the light of this your exclusion is conducive to the public good." The immigration rules upon which the immigration officer relied were 76 and 85(b) of House of Commons paper 169. So far as relevant Rule 76 reads:

"The immigration officer has power to refuse leave to enter on the grounds set out in paragraph 85 below. Leave to enter may be refused if previous leave to enter or remain has been obtained by deception."

Rule 85(b) reads:

"Any passenger except the wife and child under 18 of a person settled in the United Kingdom may be refused leave to enter on the ground that his exclusion is conducive to the public good, where . . . (b) from information available to the immigration officer it seems right to refuse leave to enter on that ground -- if, for example, in the light of the passenger's character, conduct or associations it is undesirable to give him leave to enter."

It will, I think, be helpful if I outline in some detail this applicant's immigration history. He was born in Turkey in 1948. He married a lady in Turkey in 1967 and of that marriage there are two children. On 8 February 1976 he entered the United Kingdom as a visitor with one month's leave. At that time he was calling himself Erdivan Aciyan. Within a very short time of that entry, and when it seems from the dates he might just have started becoming an overstayer, he went through a form of marriage with a British citizen called Nermin Hussein Deveji. That was on 10 April 1976. Following that marriage he was given indefinite leave to remain on 12 April 1976. On 22 September 1977, with Nermin, he left the United Kingdom for Cyprus on holiday. He left his wife Nermin in Cyprus and went himself to Turkey. On 21 February 1978 he returned to the United Kingdom with Seyhan, his Turkish wife, and the two children of that marriage, but entry was refused. The reason for the refusal was that as he was already married to Seyhan his marriage to Nermin was bigamous and he had obtained indefinite leave to remain through deception. After that refusal he tried to re-enter the United Kingdom as a visitor again on 15 April 1979. He was again refused for the same reason. On 23 October, still in the name Aciyan, he was divorced from his Turkish wife. Two days later, on 28 December of that year, he changed his name to Erdogan Alp, and on 21 January 1980 he obtained a new passport in that name. It must have been around then that he began again to associate with Nermin, because a child was born to them on 27 April 1981 and in July of that year he remarried Nermin in Turkey, from whence they went to live in West Germany, where the applicant says he had a work permit. Another child was born on 19 May 1982. On 16 January 1983 the applicant, under his new identify and with a passport in his new name, entered the United Kingdom. He was accompanied by his wife and his two children. On behalf of the respondent it is submitted, and submitted in my judgment incontrovertibly, that on that day the applicant committed deception by concealment of an almost classic kind and dimension. He presented a passport which effectively concealed his previous immigration history, including the fact that he had previously obtained leave on the basis of a bigamous marriage, that he had twice been refused entry in 1978 and 1979 on the basis of deception -- against which refusals he had not appealed -- and, as I have said, that he had by changing his name concealed that history. Under his new identity he was given permission to remain for a further 12 months on 30 March 1983 and given indefinite leave to remain on 12 March 1984. On 24 March he had a visit abroad, returning on 8 April, and he then must have left again, although I am not sure at what date. On 6 July 1984 Nermin informed the Home Office Immigration Department that since the applicant had been given indefinite leave to remain he had mistreated her. She informed them that he had recently returned to Turkey and she believed that he intended to bring his first wife to the United Kingdom. She said the two children from that first marriage were already staying with them and giving her what she called a "difficult time". She said she did not want the applicant to return to the United Kingdom as she feared he would use violence against her, and she told the Home Office that the applicant's first wife's name was Seyhan Alptekin but that she might be using the name Aciyan, the name formerly used by her husband. Later a letter was received from solicitors stating that they were acting for the applicant's wife, who was about to institute divorce proceedings against her husband. On 1 September the applicant presented himself to immigration and, as I have already recounted, he was refused entry on 4 September 1984 in the terms and under the rules which I have stated, and he was detained in the Remand Centre at Ashford. If one sets that immigration history against the two Rules to which I have referred there is only one possible answer to this case. There are two questions which I have to consider. The first is: Did the immigration officer correctly interpret the appropriate immigration rules? I would have thought that it was beyond a peradventure that he did. The second question is: What was the material upon which he could properly have come to the conclusion -- interpreting the rules as he did -- that there had been a deception in January 1984, so bringing the case within Rule 76, and that the conduct in addition to the deception was sufficient to justify the application of Rule 85(b)? On behalf of the applicant it has been urged that Rule 85(b) should be construed in the same way as section 3(5)(b) and also section 15(3) which is a section dealing with appeals in respect of deportation orders referred to in the House of Lords in Khawaja. That is quite irrelevant. Section 15(3) of the Act reads:

"A person will not be entitled to appeal against a decision to make a deportation order against him if the grounds of the decision are that his deportation is conducive to the public good as being in the interests of national security or of the relations between the United Kingdom and another country or for reasons of a political nature."

That is a restriction on the generality of the section, but in any event Rule 85 is case in terms which do not for one second allow the restrictive interpretation of "conducive to the public good" which is urged upon me by counsel for the applicant in this case. The application clearly fails, but unfortunately that is not the end of the matter. I think it is by now well known that the jurisdiction of the Divisional Court and of the single judges sitting in the Crown Office list, as I had occasion sadly to remark yesterday as well, is overburdened with many genuine cases of people seeking relief from injustice and maladministration and the function of the court depends, and depends to a very large extent, upon the applications to move for judicial review being frank, candid and disclosing everything that ought to be disclosed. That has been the law for many years and I hope what I say will act as a reminder to those members of the legal profession who have to consider applications for leave to move in this court. In the case of R v Kensington Income Tax Commissioners ex parte Princess Edmond de Polignac [1917] KB 486 Viscount Reading LCJ stated this:

"Where an ex parte application has been made to this court for a rule nisi or other process if the court comes to the conclusion that the affidavit was not candid and did not fairly state the facts, but stated them in such a way as to mislead and deceive the Court, there is power inherent in the Court, in order to protect itself and prevent an abuse of its process, to discharge the rule nisi and refuse to proceed further with the examination of the merits. This is a power inherent in the court, but one which should only be used in cases which bring conviction to the mind of the court that it has been deceived."

There was an appeal to the Court of Appeal and at page 502 Lord Cozens-Hardy MR said this:

"It raises one very important point of principle upon which I think it is desirable that I should express emphatically my agreement with the Divisional Court. A rule nisi was applied for and obtained for a prohibition. It was supported by and founded on an affidavit. That affidavit contained statements which I quite agree with the Lord Chief Justice were inaccurate to the knowledge of the lady, the deponent, and I think almost manifestly intended to conceal from the Court certain facts which were not only relevant, but I will go further and say essential, to the decision of the matter which came before them."

This application came before Lloyd J (as he then was), on an oral application on 6 November 1984, and the application was supported not by an affidavit from the applicant but by an affidavit from Nermin, his wife. At that time the applicant was in the Remand Centre at Ashford and I am told that somebody employed by the firm of solicitors went to the Centre, but had difficulty in understanding the applicant, and so an affidavit had been drafted by counsel on the solicitors' instructions for the wife to sign. I regret to say that I have to look at that affidavit, which is the applicant's case, to see what it says. In paragraph two in says this: "I make this affidavit on behalf of the applicant as the applicant is detained at HM Remand Centre, Ashford, Middlesex and unable to make this affidavit himself." This is disingenuous to the point of being untrue, and must have been known to be that when the solicitors instructed counsel to draw an affidavit in those terms. The affidavit goes on in paragraph four: "I met my husband in 1977 when he came to this country as a visitor; and got married to him. However at that time his first marriage in Turkey was still subsisting." And in paragraph five: "The applicant got his divorce with the first wife in 1979, while the applicant was in Turkey, I was in correspondence with him. The applicant obtained a work permit to work in West Germany. I also joined him there, and on 10th July 1981, the applicant and I got re-married in Turkey; as we were informed that our first marriage in 1977 was not valid." When she married him for the first time she married him in the name of Aciyan and when she married him for the second time she married him in the name of Alp. The applicant himself must have known perfectly well why it was being said that he had entered by deception and yet in the affidavit placed before the single judge there is not one word to suggest that there had been any change of name. And the lady who swore the affidavit had married him in two different names. Nor in the affidavit is there any reference anywhere to the 1978 and 1979 refusals of entry which the applicant knew perfectly well had been made, and knew perfectly well the basis upon which they had been made. In my judgment there could not have been a greater failure of the uberrima fides which is required on making these applications than is contained in those two paragraphs and the omission concerning the 1978 and 1979 refusals. On paragraph nine I agree with the submission of Mr Pleming that the statement of immigration history is made, I suspect deliberately, to look as if the various entries were mere formalities. In paragraph twelve, for the eyes of the judge, she deposed thus: "I reported to the Home Office about our marital dispute and about the divorce proceedings which I commenced against the applicant." There is not a word about the highly relevant and significant allegations which she made in that summer to the Home Office about the applicant. In paragraph sixteen -- and this is the applicant's wife deposing -- she says: "I verily believe that the applicant did not use any type of deception either to obtain leave to remain in the United Kingdom on 16th January 1983 and, subsequently on 30th March 1983 and on 12th March 1984." The lady should not have been permitted to depose in those terms in this case. It was quite wrong for her, in effect, to be saying "I, the wife of the applicant, verily believe something" when either she could not have believed it or she did not have the required information upon which to come to the belief to which she was deposing. As I have said, the respondent is not represented when an application for leave to move is made. In this case it so happens that because there was a bail application the Home Office was represented on that issue, but that does not alter the burden of my remarks and, whilst nobody can remember, it seems most unlikely -- and it would be contrary to normal practice -- that the judge would seek the assistance of counsel for the Home Office at that stage on the merits of the application, he of course not having the relevant affidavit before him at that time. I cannot do other than come to the conclusion that leave in this case was obtained by deception of the court, and it cannot be widely enough known that if that happens then the applicant will not be permitted by the court to go into the merits of the case at all. Unfortunately, as I have said, that is not the end of the matter because it is well-known, and judges in this division have said it time and again, that there is a duty upon solicitors to reconsider the case when they receive the evidence filed on behalf of the respondent and to think carefully whether time and expense should be involved in actually moving for a judicial review. Three affidavits were filed by the respondent in this case and they clearly from their contents deserved the most careful consideration by those advising the applicant and also required, if it was thought appropriate, that any affidavit in reply to those affidavits should face squarely the allegations and facts contained in them. The applicant did file an affidavit further to the one sworn by his wife. I do not intend to go into it in any detail, but it is plain when one looks at it in the light of the affidavits filed on behalf of the respondent that practically none of the major allegations made in the affidavits of the immigration officers are faced squarely by the deponent. In my judgment, looking at the affidavits filed on behalf of the Home Office and then considering what is apparently the best answer to them which can be given by the applicant, he should have been advised -- and advised strongly -- at that stage not to proceed with this application which, in the light of all the evidence before the solicitors, should have seemed quite hopeless. The application fails. MR PLEMING: I now turn to the question of costs. I am instructed that the Treasury Solicitor has not received any notice of legal aid under Rule 51 of the rules, and I assume that Mr Alp is not legally aided. It matters not whether he is for the application that I make, because I ask that this court should order that the costs be paid by those who instructed my learned friend. If I can correct one question of timing, the first notification that the Home Office had of the involvement of Mascarenhas & Co was by telephone on 17 October 1984, which was some two weeks or so before the application was made. HODGSON J: When was the affidavit filed? MR PLEMING: The affidavit was filed on the form 86(1) and was dated 2 November. It was from Mascarenhas. The position now, as far as those who instruct me are aware, is that it is still that firm which represents Mr Alp. However, the latest affidavit -- the second affidavit -- has on it not the firm of Mascarenhas but the firm of Rahman, and Mr Rahman was employed by or a partner in the firm of Mascarenhas. If there has been a change that has not been notified. HODGSON J: Are you speaking of the affidavit of the applicant? MR PLEMING: Yes, the October 1985 affidavit. HODGSON J: I have got it before me. It says the solicitor is BF Mascarenhas. MR PLEMING: Yes. It could not be sworn before his own solicitor. It has Rahman & Co, 27 Sylvan Avenue, Wood Green on the back page. It was sworn before Mascarenhas. There appears to have been a change. I am trying to identify which firm I am attacking. HODGSON J: Can you help, Mr Azhar? MR AZHAR: I have been handed a letter from the Law Society dated 30 September 1985, saying that the legal aid certificate has been changed to Rahman & Co. HODGSON J: Is there a legal aid certificate? MR AZHAR: Yes, there is. HODGSON J: Why have the respondents not been told? MR AZHAR: I have also been handed two letters dated 3 October 1985. One is to the Chief Clerk of the Crown Office, Royal Courts of Justice and says: "Please find enclosed the legal aid certificate granted to the above-named." That is one, and the Treasury Solicitor is also informed by letter of 3 October 1985. MR PLEMING: I withdraw that. It has obviously been filed amongst the papers. I am sorry. HODGSON J: Who are the solicitors: MR AZHAR: In that, Rahman & Co. HODGSON J: They were the solicitors by that time? MR AZHAR: Certainly these two letters of October 1985, when the court and the Treasury Solicitor were notified, were in the name of Rahman & Co. As your Lordship will see from the letter of 30 September 1985, the certificate was changed to the name of Messrs Rahman & Co, 27 Sylvan Avenue, Wood Green. HODGSON J: So Rahman was the solicitor when the second affidavit was sworn? MR AZHAR: My Lord, yes. HODGSON J: So what happened was that after the respondent's evidence was filed in the summer of 1985 there was a change of solicitors. Is that right? MR AZHAR: My Lord, yes. MR PLEMING: I think I can fill in another hole. The first solicitors, as I said earlier, were Mascarenhas & Co and an associate in that firm was Mr Rahman. One assumes Mr Rahman then branched out on his own. HODGSON J: And he took the case with him? MR PLEMING: Yes. It was Mascarenhas when the court was -- in your Lordship's words -- deceived. It was Mr Rahman who appeared to be the responsible solicitor under reference AR. HODGSON J: He was responsible for considering whether the matter should go on? MR PLEMING: Yes, it was Mr Rahman who first contacted the Home Office on 17 October 1984. The question of costs, as I say, is of course a question for your Lordship. If there had been no certificate it might have been slightly simpler, but it does not make that much difference to my application, because it is an application that the Secretary of State should not be burdened by meeting his own costs as he would normally be against a legally-aided representative. The discretion that lies with your Lordship is a wide discretion under s 51 of the 1981 Supreme Court Act. That is in Volume 2 at page 1334: "Subject to the provisions of this or any other Act and to rules of court, the costs of and incidental to all proceedings in the civil division of the Court of Appeal and in the High Court, including the administration of estates and trusts, shall be in the discretion of the court, and the court shall have full power to determine by whom and to what extent the costs are to be paid." That full power is restricted by rules in relation to solicitors in Volume 1, 0.62 R 8: "Personal liability of solicitor for costs. (1) Subject to the following provisions of this rule, where in any proceedings costs are incurred improperly or without reasonable cause or are wasted by undue delay or by any other misconduct or default, the Court may make against any solicitor whom it considers to be responsible (whether personally or through a servant or agent) an order -- (a) disallowing the costs as between the solicitor and his client; and (b) directing the solicitor to repay to his client costs which the client has been ordered to pay to other parties to the proceedings; or (c) directing the solicitor personally to indemnify such other parties against costs payable by them. (2) is then the relevant part: "No order under this rule shall be made against a solicitor unless he has been given a reasonable opportunity to appear before the Court and show cause why the order should not be made, except where any proceeding in Court or in chambers cannot conveniently proceed, and fails or is adjourned without useful progress being made, -- (a) because of the failure of the solicitor to attend in person or by a proper representative." I do not think there is any other relevant rule I can deal with, save for the notes to the rule which set out the limitation on section 51, and the note under the head 62/8/2: "In the absence of misconduct or negligence on the part of an appellant's solicitor the Judge has no power under SCA 1981, s 51, Vol 2, Pt 17, para 5241 to order him to pay the costs of the appeal personally nor in the absence of an undertaking can the solicitor of a party receiving costs be made personally liable for their repayment when the order giving costs is reversed on appeal. Then the relevance of the Legal Aid Act is at 62/8/4: "Nothing in the Act has taken away from the Court either its inherent jurisdiction or its express powers to penalise a solicitor in costs." I do not think I need to take you through any other observations. Although there is separate power in this court to disallow any taxation under the Legal Aid Act under Regulation 104 of the 1982 Regulations that is not for me to raise, save to mention that it is in your power. I am concerned that there should be an order for the costs of the Secretary of State to be paid by the two firms of solicitors, Mascarenhas and Rahman. HODGSON J: As to disallowing taxation, these affidavits are not the worst by deponents. MR PLEMING: I was not attempting to disallow any sum that the solicitors should receive. It is whether the Secretary of State should pay his own costs, and that is the effect of a certificate. There are no realistic prospects of proceedings against Mr Alp, and one could feel nothing but concern for Mrs Alp. I make the application. HODGSON J: What do you say, Mr Azhar? MR AZHAR: May I make my submission in this way. Your Lordship in the course of judgment has made comments, and I have no doubt in my mind that it is a serious reflection on myself and on those who sit behind me. HODGSON J: I do not see why it should have anything to do with you. MR AZHAR: So far as the immigration matters are concerned, I am involved in many cases. The second matter is that what your Lordship has said today will, with the greatest respect, have a great effect and enough punishment is there already without awarding costs. HODGSON J: It is not a question of punishment at all. It is a question of whether the Home Office should have to bear the costs of this case or whether the two firms of solicitors should do so. MR AZHAR: On the matter of whether or not the order should be made for costs against anybody so that the Home Office does not have to suffer, there again I respectfully submit that when I came to this court I prepared myself and worked as hard as I could to assist in the matter; to assist those who are in need of justice. I was wholly convinced that he definitely had an arguable case. I looked at all cases as far as I could. Therefore, if those instructing me took the view that there was an arguable case, I suppose I am also partly responsible for that. HODGSON J: I can see that so far as Rahman is concerned, but I cannot see it as far as Mascarenhas is concerned. MR AZHAR: I understood there have been things said -- if I may put it that way -- against the gentleman who is in conduct of this case, namely Mr Rahman, because he was with Mascarenhas when the case started because the reference shows that he was the one dealing with it. If one looks differently at it, there are good things that Mr Rahman did such as spending his time running about as much as possible in the circumstances such as these; there was a wife and children and a man in detention and other solicitors were doing nothing. I understand there were occasions when he had to work without any finance coming from the wife because at that time legal aid was not forthcoming. There is always a bad side of a person, and at the same time a good side of a person. I do hope that in the light of what your Lordship has said it cancels out in that way whatever was not taken care of as it should have been, instead of your Lordship ordering any costs against Mr Rahman or the company that he represents. I am told that never in the life of this firm of solicitors has anything of this nature happened. What your Lordship has said will have an effect without awarding costs. I am not trying to minimise the seriousness of the matter. They have taken full note of it, and I hope some way out can be found rather than by awarding costs against the solicitors. HODGSON J: I am more worried about Mr Rahman than counsel. I think an application is much more serious, actually. MR PLEMING: Yes, I appreciate your Lordship's concern. All I do is make the application. I make no specific criticisms of Mr Rahman. I hope I have made that clear. I merely make application as I would make it in many other cases, not necessarily when I am instructed by the Treasury, so that a successful party should not have to pay any costs if there is a person against whom an order can be made. If it is to be an order against Mascarenhas then, as they are not represented today, perhaps the appropriate course would be to adjourn my application because of Order 62, Rule 2. HODGSON J: Yes, I think that would be the best course. MR PLEMING: I do not think an order can be made in their absence. HODGSON J: No, and you are asking for costs against them anyway. I think we will have to adjourn it. MR PLEMING: Somebody needs to explain it to them. Before I sit down there is one other matter, and that is the question of Mr Alp. I am instructed to invite your Lordship to commit him into the custody of the Home Office. I am not sure that is the right form. I raise it because I am instructed to do so, but he has been on court bail since 1984. The effect of today's hearing is that if he does not surrender to bail he is liable to arrest. I do not think it is a question you can deal with, but I raise it in open court so that my learned friend and those who represent Mr Alp appreciate it. This is sometimes not appreciated by applicants who appear in these cases. It is expected he will now surrender back to the Home Office. HODGSON J: I think we will have to adjourn until Friday morning so that Mascarenhas can be represented, because I take a more serious view of what happened before Lloyd J than you do, certainly after hearing you being so frank about it, so far as Mr Rahman is concerned. Therefore, I will adjourn it until Friday morning. You do not need to appear, but send somebody else along. MR PLEMING: The Home Secretary will be represented, but probably not by me. MR AZHAR: Will you require my presence, or can somebody else attend? HODGSON J: We need somebody to represent Mascarenhas, not necessarily yourself. They must be given an opportunity of making an explanation. MR AZHAR: As far as Mr Alp is concerned, can I take some instructions on the matter? HODGSON J: I do not think there is anything anybody can do about it. You can deal with that yourself. I do not think I can do any more. He has surrendered to his bail, and he is now effectively in the custody of the Home Office, I think. MR PLEMING: Yes, he is. HODGSON J: As soon as I refused the application that became effective. MR PLEMING: That is why I mentioned it in rather clumsy terms, so everyone would be aware of the consequences. HODGSON J: I do not think there is anything I can do. We will adjourn until Friday morning. (Adjourned to Friday 23 May 1986) 23 May 1986 S Hussain for the applicant N Pleming for the respondent (After further argument the following judgment was given) HODGSON J: I have now given the firm of which I understand Mr Mascarenhas is a senior partner an opportunity to be heard. It now seems that probably the person responsible throughout was Mr Rahman, who was at the time of the application employed by Mr Mascarenhas but during the course of these proceedings left it and set up on his own. I want to make it absolutely clear that nothing I have said should be thought to reflect in any way on Mr Mascarenhas himself personally and it may well be -- I express no view about the matter -- that Mr Mascarenhas's firm, who were on the record at the time when this application was made, may have some remedy. I have to consider whether, in the light of all the things that have emerged and on which I have commented in argument, it would be fair for the Home Office in this case to have to bear their costs. I cannot think that it would be. It seems to me that this is a case where the firm of solicitors who were responsible and instructed at the time when this application was made should bear the costs, and I so order. MR PLEMING: Would that order please include the costs thrown away by the adjournment on 9 May, 1986. That was an application made because counsel was in another court but attendance was still necessary on behalf of the Secretary of State. HODGSON J: You cannot say anything about that, can you, as you do not know anything about it, but the case was listed and unfortunately -- I dare say nobody was to blame -- counsel was in another court in the afternoon and could not go on. It must be right that these costs include the Home Office costs caused by that adjournment. MR HUSSAIN: Of course, I cannot resist that application, my lord. MR PLEMING: Under Order 62/8/1C, which is the appropriate order, it would be on an indemnity basis and I ask it to be in those terms. HODGSON J: Do you now need it on that basis? MR PLEMING: After the change was first made to costs, I am not sure whether indemnity is better than all costs reasonably incurred. I have been considering that and the wording of the rule -- HODGSON J: It is still indemnity? MR PLEMING: That is the wording of the rule, my lord. It is the final sentence of 62/8/1C, at the foot of page 902. HODGSON J: Yes, that is right. I do not think it will make any difference. The difference between the old indemnity and the old common fund basis was if on indemnity even unreasonable costs -- MR PLEMING: I do not ask for unreasonable costs when acting on behalf of the Secretary of State. HODGSON J: I do not think it will make any difference. MR HUSSAIN: My lord, is this cost to which you have been referring for the entire hearing? HODGSON J: Yes, because I am sure that leave would not have been granted if there had been full disclosure. MR HUSSAIN: May I mention to your lordship the costs for the day when it was thrown away in the sense that learned counsel could not appear on that day, it was the other firm, Rahman & Co representing the client. HODGSON J: I had forgotten that. MR PLEMING: My argument, my lord, is that these costs have been incurred because leave would not have been granted. It makes no difference if there had been one, two or three firms save that another firm may have advised Mr Alp not to pursue the matter, but that advice could well have been given prior to 30 September, 1985, which is the change of legal aid certificate day, because by that time the Secretary of State's affidavit had been sworn and served. HODGSON J: I think that is right.

DISPOSITION:

Application dismissed. Costs awarded against solicitors

SOLICITORS:

BC Mascarenhas & Co (and subsequently) A Rahman & Co: Treasury Solicitor

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