[2007] UKAIT 95
- Case title: YH (Funding, regulation 8, excluding costs)
- Appellant name: YH
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Sudan
- Judges: Ms D K Gill, M E A Innes, Mr A F Sheward
- Keywords Funding, regulation 8, excluding costs
The decision
YH (Funding – regulation 8 – excluding costs) Sudan [2007] UKAIT 00095
asylum and immigration Tribunal
the immigration Acts
Heard at:
Field House
Date of hearing:
14 June 2007
Determination notified:
Before
Senior Immigration Judge Gill
Mr. M. E. A. Innes
Mr. A. F. Sheward
Between
YH
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: [Counsel], of Counsel, instructed by [the Solicitors].
For the Respondent: Ms. S. Ong, Senior Home Office Presenting Officer.
The costs of a supplier or any counsel may only be excluded from a funding order in special circumstances. This is so whether regulation 8(2) or regulation 8(2B) of the Community Legal Service (Asylum and Immigration Appeals) Regulations 2005 (as amended) applies. The special circumstances must relate to the reasons for excluding the costs of a supplier/counsel (as the case may be) whilst including the costs of another supplier/counsel in the order.
FUNDING DETERMINATION
1. [In order to anonymise this determination, the details of the appeal are not reported]
2.
3.
4.
5. At the hearing on 14 June 2007, Counsel requested the Tribunal to issue a funding order. The Tribunal had earlier drawn Counsel’s attention to the fact that the Solicitors had failed to serve several documents which were being relied upon by the Appellant for the second-stage reconsideration hearing. We identify at paragraph 22 below the documents and bundles which were served by the Solicitors and those which were copied by the Tribunal itself, so that the hearing could proceed. In addition, in the bundle submitted by the Solicitors which we numbered bundle number 4, item 10 was intended to include a document relating to “Abeyi, the A’s home region”. Three copies of bundle 4 had been served on the Tribunal. However, two of these bundles did not match the remaining one because the index for these two bundles described item 10 as “Documents in respect of Labado, the A’s home region” and the document at pages 159 to 178 of that bundle related to Labado and not Abeyi. The third (and remaining) copy of bundle 4 was correct.
6. Such was the state of the documents and bundles that there was a significant danger of the Tribunal overlooking documentary evidence which was relevant to the appeal. The Tribunal was faced with the prospect of either adjourning the hearing so that complete and accurate bundles could be prepared and submitted, or giving Counsel some time to check all the documents and to confirm that we had at least one complete set. It was only possible to do the latter because the Tribunal had, prior to the hearing date, taken the precaution of copying on its own volition the bundles and documents which appeared to the Tribunal to be missing from the bundles submitted by the Solicitors. We then requested that Counsel check every page to ensure that the pages included in the bundles matched the index at the front. Counsel informed us that he would telephone the Solicitors and attempt to obtain an explanation for the poor preparation of the bundles.
7. When we reconvened, Counsel informed us that he had telephoned the Solicitors, who had informed him that, in their view, it was the Tribunal which must have mixed up the Appellant's bundle 4 with the bundles submitted by them in connection with another Sudanese appeal in which they had also been instructed. The Tribunal informed Counsel that this did not explain why several other documents which were relied upon had not been served by the Solicitors (see column (2) at paragraph 22 below and paragraphs 25 and 26 below). Counsel informed us that he had no explanation. It was at this point that Counsel submitted the second (undated) letter from the Appellant's doctor (Dr. Jenkins).
8. At the end of the hearing, Counsel informed the Tribunal that he had been instructed to request a funding order. We informed him to request the Solicitors to explain why they had failed to serve all the documents relied upon and why two copies of the Appellant's bundle 4 contained a document belonging to another, different, appellant. We said we would give the Solicitors five days in which to respond in writing. We made it clear that, whilst we did not wish to question whether Counsel’s fees should be paid out of the relevant fund (as defined in rule 33 of the Procedure Rules), we required an explanation from the Solicitors before we would order their costs to be paid out of the relevant fund.
9. On 21 June 2007, the Tribunal received a letter from the Solicitors, to which we will refer below.
10. The relevant statutory provisions are set out in section 103D of the Nationality, Immigration and Asylum Act 2002 as amended (the 2002 Act), rules 28A and 33 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (the Procedure Rules) and the Community Legal Service (Asylum and Immigration Appeals) Regulations 2005 as amended with effect from 30 April 2007 by the Community Legal Service (Asylum and Immigration Appeals) (Amendment) Regulations 2007 (the amended CLS Regulations). Paragraph 15 of the Practice Directions as amended on 30 April 2007 is also relevant. We will refer to these where necessary.
11. The power to make an order that an appellant’s costs be paid out of the relevant fund is set out in section 103D of the 2002 Act. Section 103D (1), (2) and (3) provide:
“(1) On the application of an appellant under section 103A, the appropriate court may order that the appellant's costs in respect of the application under section 103A shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c.22).
(2) Subsection (3) applies where an order for reconsideration is made -
(a) under section 103A(1), and
(b) on the application of the appellant.
(3) The Tribunal may order payment out of that Fund of the appellant’s costs –
(a) in respect of the application for reconsideration;
(b) in respect of the preparation for reconsideration;
(c) in respect of the reconsideration;”
12. Regulation 6 of the amended CLS Regulations provides:
“6 (1) The Tribunal must exercise the power to make an order under section 103D(3) in accordance with this regulation.
(IA) The Tribunal may only make an order under section 103D(3) where-
(a) it has reconsidered its decision on an appeal; or
(b) an order for reconsideration has been made but the reconsideration does not take place or is not completed because:-
(i) the appeal lapses, or is treated as abandoned or finally determined, by operation of an enactment; or
(ii) the appeal is withdrawn by the appellant, or is treated as withdrawn because the respondent withdraws the decision or decision to which the appeal relates.
(2) If the Tribunal allows an appeal on reconsideration, it must make an order under section 103D(3).
(3) If the Tribunal dismisses an appeal on reconsideration, it must not make an order under section 103D(3) unless satisfied that, at the time when the appellant made the section 103A application, there was a significant prospect that the appeal would be allowed upon reconsideration.
(3A) If an order for reconsideration is made but the reconsideration does not take place or is not completed, the Tribunal must not make an order under section 103D(3) unless it is satisfied that, at the time when the appellant made the section 103A application, there was a significant prospect that the appeal would be allowed upon reconsideration.
(4) If, where paragraph (3) or (3A) applies, the Tribunal decides not to make an order under section 103D(3), it must give reasons for its decision.”
13. In RS (Funding – meaning of ‘significant prospect’) Iran [2005] UKAIT 00138, the Tribunal gave guidance on the meaning of the phrase “significant prospect”. The Tribunal in that case held, inter alia, that, in the majority of cases:
(a) there is no material difference between the “significant prospect” test for the issue of a section 103D funding order under regulation 6(3) and the “real possibility” test under rule 26(6) before reconsideration can be ordered under the Procedure Rules (paragraph 16 of the determination); and
(b) the initial views of the Senior Immigration Judge who ordered reconsideration should be regarded as the decisive factor in determining whether the funding order should be made within the terms of regulation 6(3) (paragraph 18 of the determination).
14. In RS, the Tribunal went on to give four examples of cases in which the preliminary view of the Senior Immigration Judge who ordered reconsideration may need to be revisited for the purposes of deciding a funding order application. In DM (Timing of funding application) Zimbabwe [2006] UKAIT 00088, the Tribunal gave guidance as to whether there is a prescriptive time limit for an application to be made for a funding order and whether there is a requirement for an explanation for any delay in making an application for a funding order. These issues do not concern us in the instant case. This is because we are satisfied that, at the time the application for reconsideration was made, there was a significant prospect that the appeal would be allowed upon reconsideration. We are so satisfied having regard to the fact that Neuberger LJ ordered the Tribunal to reconsider its decision and that the Tribunal at the first stage of the reconsideration on 6 June 2006 concluded that the Immigration Judge had materially erred in law, particularly with reference to Dr. Bell’s report (see item 7 in bundle 1 in paragraph 22 below), and ordered a reconsideration on the merits with all issues at large. The outcome of the reconsideration ultimately turned on credibility. The fact that the Appellant was ultimately found not credible is not relevant to the question whether there was a significant prospect, at the time the section 103A application was made, that the Appellant's appeal would be allowed.
15. Nevertheless, in our view, the Tribunal retains a discretion under regulation 6(3) to refuse to make a funding order. If it had been intended not to confer on the Tribunal a discretion to refuse to make a funding order in the case of appeals which are dismissed and if the only criteria for the making of a funding order is whether the Tribunal is satisfied that, at the time of the application for reconsideration, there was a significant prospect that the appeal would be allowed on reconsideration, then it would have been an easy matter for the draftsman to have written regulation 6(3) in a way similar to regulation 6(2), by the use of the word “must”. The fact that the draftsman chose not to do so is a very strong indication that the fact that there was a significant prospect, at the time the application for reconsideration was made, that the appeal would be allowed on reconsideration is not determinative.
16. In this determination, we do not give guidance as to the circumstances in which it would be appropriate for the Tribunal to refuse to make a funding order under regulation 6(3). That may need to be considered on another occasion. In the instant case, and having regard to the fact that neither Counsel nor [the previous representatives] have given the Tribunal any cause for concern in their preparation or handling of the case, we exercise our discretion to make a funding order.
17. However, we have concerns as to the preparation of this case by the Solicitors, as explained below. Accordingly, we turn to regulation 8 to consider whether this permits the Tribunal to make a funding order on a limited basis, i.e. to order that only Counsel's fees and the costs of [the previous representatives] are to be paid out of the relevant fund (as defined in rule 33 of the Procedure Rules).
18. Regulation 8 of the amended CLS Regulations provides:
“8. (1) Subject to paragraph (2), a section 103D order shall have effect as an order for payment of all costs incurred by a supplier representing the appellant in the proceedings to which the order relates, including the fees of counsel instructed by the supplier, for which payment is allowable under the terms of the contract between the Commission and the supplier.
(2) In relation to proceedings in which a supplier has instructed counsel, the High Court or the Tribunal may in special circumstances make a section 103D order-
(a) in respect of counsel's fees only; or
(b) in respect of the costs incurred by the supplier excluding counsel's fees.
(2A) Where paragraph (2) applies the High Court or Tribunal must give reasons for its decision.
(2B) Where an appellant has been represented by more than one supplier or more than one counsel in the course of immigration review proceedings, a section 103D order shall, unless it provides otherwise, have effect as an order for the payment of the costs incurred by each supplier and of the fees of each counsel while he was instructed to represent the appellant in the proceedings.”
Regulation 3 is the interpretation provision. We have set out the definitions of “supplier” and “contract” above. Regulation 3 defines “counsel” as “a barrister in independent practice”.
19. In cases in which there is one supplier only and that supplier has not instructed counsel, then if the Tribunal decides to make a section 103D order, that order will relate to all of the costs of the supplier, whether they relate to the application itself, or the preparation for the reconsideration or the reconsideration. This is because regulation 8(1) does not make any provision to limit the section 103D order so as to allow the payment of part only of the supplier’s costs. If the supplier has instructed counsel, then regulation 8(2) permits the Tribunal, in special circumstances, to make a section 103D order so as to limit the order to counsel’s fees only or the costs of the supplier excluding counsel. It should be noted that the Tribunal has a discretion to make an order on such a limited basis. This discretion must be exercised judicially. Regulation 8 (2A) requires the Tribunal to give reasons for making an order on a limited basis, as provided for in regulation 8(2). As with regulation 8(1), regulation 8(2) does not make any provision which would enable the Tribunal to limit the section 103D order so as to allow the payment of part only of the supplier's costs, or part only of counsel's fees.
20. The Tribunal's power to make a section 103D order on a limited basis in cases in which there is more than one supplier or more than one counsel is governed by regulation 8(2B). The wording of regulation 8(2B) is slightly different from that of regulation 8(1). Regulation 8(1) provides that a section 103D order shall have effect as stated in regulation 8(1) “subject to paragraph (2)”, i.e. subject to the provisions of regulation 8(2), whereas regulation 8(2B) provides that a section 103D order shall have effect as provided in that paragraph “unless it [the section 103D order] provides otherwise”. The second difference is that regulation 8(1) relates to “all costs incurred ……. in the proceedings to which the order relates”, whereas regulation 8(2B) relates to “costs incurred by each supplier and ……. fees of each counsel while he was instructed to represent the appellant in the proceedings” (our emphasis). The third difference is that, under regulation 8(2), a section 103D order may only be made if there are special circumstances, whereas regulation 8(2B) does not make any reference to “special circumstances”: the phrase “unless [the order] provides otherwise” do not appear to provide for such a limitation on the ability of the Tribunal to make a section 103D order on a limited basis. With these differences, regulation 8(2B) appears to cover identical ground as regulation 8(1) for single suppliers. Where regulation 8(1) applies, the inroads into a universal order are governed by regulation 8(2). Where regulation 8(2B) applies, however, there is no specific restriction on the terms of an order: the wording of the regulation is simply “unless it [i.e. the order] otherwise provides….” That, in our view, is to avoid complication in the drafting. Any limitations on the Tribunal's ability to make a limited order in cases falling under regulation 8(1) should also apply to cases falling under regulation 8(2B); there is no logical reason why they should not apply. We have therefore concluded that, notwithstanding the use of the words “unless [the order] provides otherwise”, there is no power under regulation 8(2B) to make a section 103D order so as to allow for the payment of part only of one supplier’s costs, or part only of the fees of any particular counsel. However, consistent with cases governed by regulation 8(2), it is possible under regulation 8(2B) to allow for the payment of the costs of one supplier but not another, or one counsel but not another.
21. As with cases governed by regulation 8(2), there must be special circumstances before a section 103D order on a limited basis is made under regulation 8(2B) and reasons must be given for making a limited order. The phrase “special circumstances” in regulation 8(2) is not defined. This will have to be decided on a case by case basis. In our view, there is a strong public interest in ensuring that cases are properly prepared for hearing and that relevant documentary evidence is duly served on all parties. The Tribunal is entitled to take into account, in appropriate cases, the way in which a case has been handled or prepared for the hearing. It is not every case of poor case handling or preparation which would warrant the making of a funding order on a limited basis, under regulation 8(2) or 8(2B). In the majority of cases, and having regard to the general time constraints under which most representatives in this jurisdiction operate, the Tribunal would be very slow to proceed under regulation 8(2) or 8(2B). However, in our view, a very bad case of poor case handling or preparation in respect of a supplier who has instructed counsel who has discharged his duties duly may amount to special circumstances justifying the Tribunal to make a funding order on a limited basis, in respect of counsel but not in respect of the supplier. This does not encroach upon the regulatory functions of the Immigration Services Commissioner or any designated professional body. The Tribunal's role is complementary to theirs, as well as that of the Legal Services Commission. Parliament cannot have intended to compel the Tribunal to order that a costs of a qualified or an exempt person be paid out of the relevant fund, even in a very bad case of poor case handling or preparation. Besides the fact that such conduct may warrant a complaint being made by the Tribunal to the Immigration Services Commissioner or the appropriate professional body, it would be strange if the Tribunal were to make such a complaint but nevertheless be forced into ordering that the costs of the qualified or exempt person be paid out of the relevant fund.
22. We turn now to the circumstances of this individual case. We have set out at paragraph 7 of the principal determination the documentary evidence in this case. For the purpose of the principal determination, it was sensible to list all the documents of a particular type or from a particular source together, before moving on to documents of a different type or from a different source. For the purposes of this funding determination, it is necessary to set out the documents in a different order, so that it is more readily apparent what documents have been served by the Solicitors for the purposes of the reconsideration hearing, and what have been omitted by them, as follows (the bundle numbers refer to the numbers assigned to the bundles by the Tribunal at the hearing on 14 June 2007):
COLUMN (1)
COLUMN (2)
Documents NOT served by the Solicitors
Documents served by the Solicitors
Bundle 1
Bundle 3
1.
Chronology (page 1 of bundle 1)
1.
Appellant’s witness statement dated 21 May 2007 (pages 1 to 8 of bundle 3) with exhibits thereto (which were the map and the letter from the British Red Cross at items 2 and 3 below)
2.
Appellant’s witness statement dated 18 March 2005 (pages 2 to 8 of the bundle 1)
2.
Map at page 6 of bundle 3
3.
Map of Sudan (page 42 of bundle 1)
3.
Letter from British Red Cross, dated 23 May 2007 (page 8 of bundle 3)
4.
More detailed map of Sudan (page 43 of bundle 1)
4.
Report from Ms. Powling, the Appellant's social worker, dated 2 March 2007 (pages 9 to 10 of bundle 3)
5.
Report by Appellant’s social worker, Ms. Lucy Powling, dated February 2005 (pages 44 to 45 of bundle 1)
5.
Letter from the Appellant's doctor (Dr. Jenkins) dated 31 May 2007, at page 11 of bundle 3)
6.
Supplementary report by social worker, Ms. Powling, dated 16 March 2005 (page 46 of bundle 1)
Bundle 4
7.
Report by Dr. D L Bell, Consultant Psychiatrist dated March 3005 (pages 47 to 53 of bundle 1)
6.
Map of Sudan (page 1 of bundle 4)
8.
Report dated 17 March 2005 by Ms. Alice Conroy, a director of “Pathways to Independence” (pages 54 to 56 of bundle 1) [This is the organisation which provides the Appellant's accommodation]. Ms. Conroy states in her report that she was writing in her capacity as the Appellant's personal adviser and the manager of his accommodation
7.
Expert report of Peter Verney dated 6 March 2007 (pages 17 to 30 of bundle 4)
[This report, which was of a generic nature, does not replace the report dated 24 March 2005 in bundle 1].
9.
Expert report prepared by Mr. Peter Verney, dated 24 March 2005 (pages 57 to 61 of bundle 1)
8.
Expert report of Sarah Maguire dated June 2006 (pages 125 to 148 of bundle 4)
[Again, this report, which is of a generic nature, does not replace the specific report dated 2 June 2006 in bundle 2.]
Bundle 2
9.
Documents in respect of “XXX” the A’s home region (pages 159 to 177 of bundle 4).
10
Appellant’s witness statement dated 2 June 2006 (pages 1 to 3 of bundle 2)
11
Psychological report by Ms. C. Jennings, Chartered Child Psychologist, dated 7 March 2006 (pages 4 to 17 of bundle 2)
12
Expert report by Ms. Sarah Macguire, prepared specifically for the Appellant’s case, dated 2 June 2006 (pages 18 to 35 of bundle 2)
Document submitted by Counsel after a phone call to the Solicitors
12
Letter from the Union of the People of Darfur UK & N. Ireland, dated 23 December 2005, in which they state that they have interviewed the Appellant and are of the opinion that he is a “Darfurian, a member of the Messirya tribe and that he originates from Abeyi in Darfur” (pages 41 to 42 of bundle 2). [This was relevant to the factual issues before the Tribunal]
10
Second (undated) letter from the Appellant's doctor, Dr. Jenkins.
14
The Appellant's membership card in respect of the Union of the People Darfur U.K. & N. Ireland (pages 43 to 44 of bundle 2)
Found by the Tribunal in loose-leaf form in the Tribunal's file by chance at the hearing:
15
Letter from Ms. Powling, the Appellant's social worker, dated June 2006.
Bundle 4 (which was served by the Solicitors) also contained background material of a general nature, which Counsel confirmed had been overtaken by the Court of Appeal’s judgment in AH (Sudan) and Others v. SSHD [2007] EWCA Civ 297. There was also a bundle 5 which was served by the Solicitors, entitled “Case-law bundle”. Counsel confirmed that the cases included in that bundle had been overtaken by the judgment in the AH case. At the date when bundles 4 and 5 were served, the judgment in the AH case had not been delivered. Therefore, one can understand why these documents were included because bundles 4 and 5 were served in March 2007 whereas the judgment in the AH case was delivered on 4 April 2007. At the hearing, Counsel submitted his skeleton argument and a newspaper article dated 21 May 2007 entitled: Darfur: United Nations Mission reports new round of clashes”.
23. As already noted, the Tribunal was only in possession of bundles 1 and 2 because of the efforts of the Tribunal itself in identifying, at its own initiative and prior to the hearing date, the documents which appeared to be missing and in ensuring that sufficient copies were made for the use of panel members. The Tribunal cannot be expected to perform this task. This is part of a representative's role. However, it is fortuitous that the Tribunal did arrange in advance for the missing documents to be copied because the hearing would not otherwise have concluded on the day (see paragraph 31 below).
24. The documents contained in bundle 1 were first served on 22 March 2005 in connection with the hearing of the appeal before Immigration Judge Jhirad. Although the Appellant was represented at that time by [the previous representatives], it was clear at the hearing on 14 June 2007 that Counsel was familiar with the documents in bundles 1 and 2. He had been provided with these by the Solicitors.
25. Leaving aside the chronology and the two maps in column (1) (on the assumption that the chronology was not necessary, nor were the maps because there was a map in one of the bundles served by the Solicitors), the fact is that the Solicitors failed to serve a number of documents which were specific to the Appellant’s case – no fewer than 12 documents. They were important documents in the context of this case. In giving his reasons for ordering the Tribunal to reconsider its decision, Neuberger LJ specifically referred to the report of Dr. Bell. He considered that there was a possibility of the Immigration Judge reaching a different conclusion if she had considered the contents of Dr. Bell's report instead of “attaching little weight to it”. As stated above, the Tribunal subsequently decided, at the first stage of the reconsideration, that the Immigration Judge had materially erred in law by rejecting Dr. Bell's report on the grounds that it was produced after a consultation of 1 ½ hours. Despite the obvious relevance and importance of Dr. Bell's report, the Solicitors failed to serve it. Further, it is significant to see that they also failed to serve other documents which were also important in this particular case – that is:
- two witness statements by the Appellant;
- three reports / letters from his social worker;
- the report of his Chartered Child Psychologist;
- the report of his adviser at Pathways to Independence;
- the letter from Union of the People of Darfur UK & N. Ireland, dealing with the factual issues which the Tribunal had to decide;
- the Appellant’s membership card with this organisation.
as well as the specific experts' reports to which we will now turn.
26. Whilst the Solicitors did serve a report from Mr. Verney and a report from Ms. Macguire (see items 7 and 8 in column (2) above), the contents of these were of a generic nature and did not relate specifically to the Appellant's case. They failed to serve the reports from these two experts which had been prepared specifically for the Appellant's case (see items 9 and 10 in column (1)) and on which Counsel relied at the hearing. The letter from Ms. Powling dated June 2006, which was referred to several times by Counsel at the hearing, was only discovered by the Tribunal on its file by chance on the hearing day.
27. In respect of item 9 in column (2), three copies of bundle 4 were submitted. Each had an index at the front. This document was item number 10 in the index for bundle 4. The Tribunal should have been in possession of three identical copies of bundle 4. It was not. Only one bundle and one index was correct. Item 10 for that bundle reads:
“Documents in respect of “Abeyi” the A’s home area.”
28. At pages 159 to 177 of this copy of bundle 4 was a document entitled: “Protocol between the Government of the Sudan and the Sudan People’s Liberation Movement/Army (SPLM/A) on the resolution of Abyei conflict” dated 26 May 2004”. This was the correct document. However, item 10 on the index of the remaining two copies of bundle 4 read:
“Documents in respect of Labado, the A’s home area.”
and pages 159 to 178 of these two bundles contained a document relating to Labado which was entirely irrelevant to this appeal.
29. By chance, the Tribunal discovered that the panel members’ copies of bundle 4 were not identical. At that point, the Chairman handed all the documents which were in her possession to Counsel and requested Counsel to check each document and each page of each bundle to ensure that the Tribunal was in possession of the correct documents and that it was in possession of all the documents, explaining that the Tribunal did not wish to find itself in the position of having inadvertently overlooked relevant evidence. Counsel said that, during the short adjournment, he would telephone the Solicitors to find out the reason why all the documents had not been served. When the hearing re-convened, Counsel informed us that the relevant caseworker at the Solicitors had informed him that the correct copies of bundle 4 had been served on the Tribunal and that, if the bundles were mixed up, this must be due to the fact that similar bundles for another client (who was from Labado) had also been served at the same time and that it must be the Tribunal which had mixed the bundles up for the two cases. We informed Counsel that, even if this explanation was accepted, it does not touch upon the remaining issue – i.e. the failure to serve several important documents relating to this case.
30. We have explained at paragraph 8 above the circumstances leading to the receipt by the Tribunal on 21 June 2007 of a letter from the Solicitors. This letter only deals with item 10 of bundle 4. In this regard, the explanation is that the Appellant’s case was previously listed for hearing on 15 March 2007 at 10.00 a.m in Court 81, and another case was listed for hearing on the same day in the same court at 2.00 p.m. The Solicitors contend that there must have been an inadvertent mix up by the Tribunal of the bundles for the two cases. Even if this is accepted (which we are prepared to), this only deals with one aspect of the difficulties we experienced with the documentary evidence; we specifically told Counsel that, in addition, we required an explanation for the failure to submit the documents listed in column (1) above. No explanation is given in this regard in the letter from the Solicitors. We therefore assume that their failure to address this issue on two occasions – i.e. via Counsel when he telephoned them on the hearing day and in their letter of 21 June 2007 – means that they have no explanation, or none that would stand up to any reasonable scrutiny. The failure to serve the documents described at paragraphs 25 and 26 should be considered together with the fact that, after the conclusion of the first-stage reconsideration and under cover of the Notice of Reconsideration hearing dated 5 February 2007 (Ref: AIT48b), the Tribunal issued directions to the parties that, no later than 5 working days before the hearing date, witness statements of the evidence to be called at the hearing were to be served, together with a paginated and indexed bundle of all documents to be relied on at the hearing, including any expert evidence.
31. It is plain from the principal determination in this case that the documents referred to in paragraphs 25 and 26 above formed an important part of the Appellant's case. Indeed, they formed the core of his explanations for the credibility issues in this case, and the core of his case that his return to Sudan would be in breach of the Geneva Convention and his human rights. The reconsideration hearing on 14 June 2007 ended just before 6.00 p.m. Accordingly, there would not have been sufficient time during the course of the day to allow Counsel an opportunity to make copies of relevant documents to be relied upon, nor would there have been sufficient time for the Tribunal to arrange this to be done. But for the fact that the Tribunal had made copies in advance of the hearing date on its own initiative, it would have been necessary to adjourn the hearing, or at least to adjourn it part-heard.
32. For these reasons, we find that the failure of the Solicitors to serve a number of documents which are important in the context of the case as a whole (as described in paragraphs 25 and 26 above) and the fact that no blame can be attached to [the previous representatives] or to Counsel (who did his best in a bad situation to assist us) amount to “special circumstances” within regulation 8(2) entitling the Tribunal to make a funding order on a limited basis, i.e. in respect of Counsel's fees and the costs of [the previous representatives] only.
33. Decision:
In accordance with regulation 8(2B) of the amended CLS Regulations, we make a section 103D order on a limited basis, as follows:
(a) We order that the costs of the application for reconsideration (i.e. the costs of [the previous representatives] in making the application for reconsideration) are to be paid out of the relevant fund, as defined in rule 33;
(b) We order that Counsel's fees (with respect to the costs of the preparation for reconsideration and the costs of the reconsideration) are to be paid out of the relevant fund, as defined in rule 33.
The costs incurred by the Solicitors are excluded.
Ms. D. K. Gill Date: 25 October 2007
Senior Immigration Judge
Approved for electronic distribution
asylum and immigration Tribunal
the immigration Acts
Heard at:
Field House
Date of hearing:
14 June 2007
Determination notified:
Before
Senior Immigration Judge Gill
Mr. M. E. A. Innes
Mr. A. F. Sheward
Between
YH
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:
For the Appellant: [Counsel], of Counsel, instructed by [the Solicitors].
For the Respondent: Ms. S. Ong, Senior Home Office Presenting Officer.
The costs of a supplier or any counsel may only be excluded from a funding order in special circumstances. This is so whether regulation 8(2) or regulation 8(2B) of the Community Legal Service (Asylum and Immigration Appeals) Regulations 2005 (as amended) applies. The special circumstances must relate to the reasons for excluding the costs of a supplier/counsel (as the case may be) whilst including the costs of another supplier/counsel in the order.
FUNDING DETERMINATION
1. [In order to anonymise this determination, the details of the appeal are not reported]
2.
3.
4.
5. At the hearing on 14 June 2007, Counsel requested the Tribunal to issue a funding order. The Tribunal had earlier drawn Counsel’s attention to the fact that the Solicitors had failed to serve several documents which were being relied upon by the Appellant for the second-stage reconsideration hearing. We identify at paragraph 22 below the documents and bundles which were served by the Solicitors and those which were copied by the Tribunal itself, so that the hearing could proceed. In addition, in the bundle submitted by the Solicitors which we numbered bundle number 4, item 10 was intended to include a document relating to “Abeyi, the A’s home region”. Three copies of bundle 4 had been served on the Tribunal. However, two of these bundles did not match the remaining one because the index for these two bundles described item 10 as “Documents in respect of Labado, the A’s home region” and the document at pages 159 to 178 of that bundle related to Labado and not Abeyi. The third (and remaining) copy of bundle 4 was correct.
6. Such was the state of the documents and bundles that there was a significant danger of the Tribunal overlooking documentary evidence which was relevant to the appeal. The Tribunal was faced with the prospect of either adjourning the hearing so that complete and accurate bundles could be prepared and submitted, or giving Counsel some time to check all the documents and to confirm that we had at least one complete set. It was only possible to do the latter because the Tribunal had, prior to the hearing date, taken the precaution of copying on its own volition the bundles and documents which appeared to the Tribunal to be missing from the bundles submitted by the Solicitors. We then requested that Counsel check every page to ensure that the pages included in the bundles matched the index at the front. Counsel informed us that he would telephone the Solicitors and attempt to obtain an explanation for the poor preparation of the bundles.
7. When we reconvened, Counsel informed us that he had telephoned the Solicitors, who had informed him that, in their view, it was the Tribunal which must have mixed up the Appellant's bundle 4 with the bundles submitted by them in connection with another Sudanese appeal in which they had also been instructed. The Tribunal informed Counsel that this did not explain why several other documents which were relied upon had not been served by the Solicitors (see column (2) at paragraph 22 below and paragraphs 25 and 26 below). Counsel informed us that he had no explanation. It was at this point that Counsel submitted the second (undated) letter from the Appellant's doctor (Dr. Jenkins).
8. At the end of the hearing, Counsel informed the Tribunal that he had been instructed to request a funding order. We informed him to request the Solicitors to explain why they had failed to serve all the documents relied upon and why two copies of the Appellant's bundle 4 contained a document belonging to another, different, appellant. We said we would give the Solicitors five days in which to respond in writing. We made it clear that, whilst we did not wish to question whether Counsel’s fees should be paid out of the relevant fund (as defined in rule 33 of the Procedure Rules), we required an explanation from the Solicitors before we would order their costs to be paid out of the relevant fund.
9. On 21 June 2007, the Tribunal received a letter from the Solicitors, to which we will refer below.
10. The relevant statutory provisions are set out in section 103D of the Nationality, Immigration and Asylum Act 2002 as amended (the 2002 Act), rules 28A and 33 of the Asylum and Immigration Tribunal (Procedure) Rules 2005 (the Procedure Rules) and the Community Legal Service (Asylum and Immigration Appeals) Regulations 2005 as amended with effect from 30 April 2007 by the Community Legal Service (Asylum and Immigration Appeals) (Amendment) Regulations 2007 (the amended CLS Regulations). Paragraph 15 of the Practice Directions as amended on 30 April 2007 is also relevant. We will refer to these where necessary.
11. The power to make an order that an appellant’s costs be paid out of the relevant fund is set out in section 103D of the 2002 Act. Section 103D (1), (2) and (3) provide:
“(1) On the application of an appellant under section 103A, the appropriate court may order that the appellant's costs in respect of the application under section 103A shall be paid out of the Community Legal Service Fund established under section 5 of the Access to Justice Act 1999 (c.22).
(2) Subsection (3) applies where an order for reconsideration is made -
(a) under section 103A(1), and
(b) on the application of the appellant.
(3) The Tribunal may order payment out of that Fund of the appellant’s costs –
(a) in respect of the application for reconsideration;
(b) in respect of the preparation for reconsideration;
(c) in respect of the reconsideration;”
12. Regulation 6 of the amended CLS Regulations provides:
“6 (1) The Tribunal must exercise the power to make an order under section 103D(3) in accordance with this regulation.
(IA) The Tribunal may only make an order under section 103D(3) where-
(a) it has reconsidered its decision on an appeal; or
(b) an order for reconsideration has been made but the reconsideration does not take place or is not completed because:-
(i) the appeal lapses, or is treated as abandoned or finally determined, by operation of an enactment; or
(ii) the appeal is withdrawn by the appellant, or is treated as withdrawn because the respondent withdraws the decision or decision to which the appeal relates.
(2) If the Tribunal allows an appeal on reconsideration, it must make an order under section 103D(3).
(3) If the Tribunal dismisses an appeal on reconsideration, it must not make an order under section 103D(3) unless satisfied that, at the time when the appellant made the section 103A application, there was a significant prospect that the appeal would be allowed upon reconsideration.
(3A) If an order for reconsideration is made but the reconsideration does not take place or is not completed, the Tribunal must not make an order under section 103D(3) unless it is satisfied that, at the time when the appellant made the section 103A application, there was a significant prospect that the appeal would be allowed upon reconsideration.
(4) If, where paragraph (3) or (3A) applies, the Tribunal decides not to make an order under section 103D(3), it must give reasons for its decision.”
13. In RS (Funding – meaning of ‘significant prospect’) Iran [2005] UKAIT 00138, the Tribunal gave guidance on the meaning of the phrase “significant prospect”. The Tribunal in that case held, inter alia, that, in the majority of cases:
(a) there is no material difference between the “significant prospect” test for the issue of a section 103D funding order under regulation 6(3) and the “real possibility” test under rule 26(6) before reconsideration can be ordered under the Procedure Rules (paragraph 16 of the determination); and
(b) the initial views of the Senior Immigration Judge who ordered reconsideration should be regarded as the decisive factor in determining whether the funding order should be made within the terms of regulation 6(3) (paragraph 18 of the determination).
14. In RS, the Tribunal went on to give four examples of cases in which the preliminary view of the Senior Immigration Judge who ordered reconsideration may need to be revisited for the purposes of deciding a funding order application. In DM (Timing of funding application) Zimbabwe [2006] UKAIT 00088, the Tribunal gave guidance as to whether there is a prescriptive time limit for an application to be made for a funding order and whether there is a requirement for an explanation for any delay in making an application for a funding order. These issues do not concern us in the instant case. This is because we are satisfied that, at the time the application for reconsideration was made, there was a significant prospect that the appeal would be allowed upon reconsideration. We are so satisfied having regard to the fact that Neuberger LJ ordered the Tribunal to reconsider its decision and that the Tribunal at the first stage of the reconsideration on 6 June 2006 concluded that the Immigration Judge had materially erred in law, particularly with reference to Dr. Bell’s report (see item 7 in bundle 1 in paragraph 22 below), and ordered a reconsideration on the merits with all issues at large. The outcome of the reconsideration ultimately turned on credibility. The fact that the Appellant was ultimately found not credible is not relevant to the question whether there was a significant prospect, at the time the section 103A application was made, that the Appellant's appeal would be allowed.
15. Nevertheless, in our view, the Tribunal retains a discretion under regulation 6(3) to refuse to make a funding order. If it had been intended not to confer on the Tribunal a discretion to refuse to make a funding order in the case of appeals which are dismissed and if the only criteria for the making of a funding order is whether the Tribunal is satisfied that, at the time of the application for reconsideration, there was a significant prospect that the appeal would be allowed on reconsideration, then it would have been an easy matter for the draftsman to have written regulation 6(3) in a way similar to regulation 6(2), by the use of the word “must”. The fact that the draftsman chose not to do so is a very strong indication that the fact that there was a significant prospect, at the time the application for reconsideration was made, that the appeal would be allowed on reconsideration is not determinative.
16. In this determination, we do not give guidance as to the circumstances in which it would be appropriate for the Tribunal to refuse to make a funding order under regulation 6(3). That may need to be considered on another occasion. In the instant case, and having regard to the fact that neither Counsel nor [the previous representatives] have given the Tribunal any cause for concern in their preparation or handling of the case, we exercise our discretion to make a funding order.
17. However, we have concerns as to the preparation of this case by the Solicitors, as explained below. Accordingly, we turn to regulation 8 to consider whether this permits the Tribunal to make a funding order on a limited basis, i.e. to order that only Counsel's fees and the costs of [the previous representatives] are to be paid out of the relevant fund (as defined in rule 33 of the Procedure Rules).
18. Regulation 8 of the amended CLS Regulations provides:
“8. (1) Subject to paragraph (2), a section 103D order shall have effect as an order for payment of all costs incurred by a supplier representing the appellant in the proceedings to which the order relates, including the fees of counsel instructed by the supplier, for which payment is allowable under the terms of the contract between the Commission and the supplier.
(2) In relation to proceedings in which a supplier has instructed counsel, the High Court or the Tribunal may in special circumstances make a section 103D order-
(a) in respect of counsel's fees only; or
(b) in respect of the costs incurred by the supplier excluding counsel's fees.
(2A) Where paragraph (2) applies the High Court or Tribunal must give reasons for its decision.
(2B) Where an appellant has been represented by more than one supplier or more than one counsel in the course of immigration review proceedings, a section 103D order shall, unless it provides otherwise, have effect as an order for the payment of the costs incurred by each supplier and of the fees of each counsel while he was instructed to represent the appellant in the proceedings.”
Regulation 3 is the interpretation provision. We have set out the definitions of “supplier” and “contract” above. Regulation 3 defines “counsel” as “a barrister in independent practice”.
19. In cases in which there is one supplier only and that supplier has not instructed counsel, then if the Tribunal decides to make a section 103D order, that order will relate to all of the costs of the supplier, whether they relate to the application itself, or the preparation for the reconsideration or the reconsideration. This is because regulation 8(1) does not make any provision to limit the section 103D order so as to allow the payment of part only of the supplier’s costs. If the supplier has instructed counsel, then regulation 8(2) permits the Tribunal, in special circumstances, to make a section 103D order so as to limit the order to counsel’s fees only or the costs of the supplier excluding counsel. It should be noted that the Tribunal has a discretion to make an order on such a limited basis. This discretion must be exercised judicially. Regulation 8 (2A) requires the Tribunal to give reasons for making an order on a limited basis, as provided for in regulation 8(2). As with regulation 8(1), regulation 8(2) does not make any provision which would enable the Tribunal to limit the section 103D order so as to allow the payment of part only of the supplier's costs, or part only of counsel's fees.
20. The Tribunal's power to make a section 103D order on a limited basis in cases in which there is more than one supplier or more than one counsel is governed by regulation 8(2B). The wording of regulation 8(2B) is slightly different from that of regulation 8(1). Regulation 8(1) provides that a section 103D order shall have effect as stated in regulation 8(1) “subject to paragraph (2)”, i.e. subject to the provisions of regulation 8(2), whereas regulation 8(2B) provides that a section 103D order shall have effect as provided in that paragraph “unless it [the section 103D order] provides otherwise”. The second difference is that regulation 8(1) relates to “all costs incurred ……. in the proceedings to which the order relates”, whereas regulation 8(2B) relates to “costs incurred by each supplier and ……. fees of each counsel while he was instructed to represent the appellant in the proceedings” (our emphasis). The third difference is that, under regulation 8(2), a section 103D order may only be made if there are special circumstances, whereas regulation 8(2B) does not make any reference to “special circumstances”: the phrase “unless [the order] provides otherwise” do not appear to provide for such a limitation on the ability of the Tribunal to make a section 103D order on a limited basis. With these differences, regulation 8(2B) appears to cover identical ground as regulation 8(1) for single suppliers. Where regulation 8(1) applies, the inroads into a universal order are governed by regulation 8(2). Where regulation 8(2B) applies, however, there is no specific restriction on the terms of an order: the wording of the regulation is simply “unless it [i.e. the order] otherwise provides….” That, in our view, is to avoid complication in the drafting. Any limitations on the Tribunal's ability to make a limited order in cases falling under regulation 8(1) should also apply to cases falling under regulation 8(2B); there is no logical reason why they should not apply. We have therefore concluded that, notwithstanding the use of the words “unless [the order] provides otherwise”, there is no power under regulation 8(2B) to make a section 103D order so as to allow for the payment of part only of one supplier’s costs, or part only of the fees of any particular counsel. However, consistent with cases governed by regulation 8(2), it is possible under regulation 8(2B) to allow for the payment of the costs of one supplier but not another, or one counsel but not another.
21. As with cases governed by regulation 8(2), there must be special circumstances before a section 103D order on a limited basis is made under regulation 8(2B) and reasons must be given for making a limited order. The phrase “special circumstances” in regulation 8(2) is not defined. This will have to be decided on a case by case basis. In our view, there is a strong public interest in ensuring that cases are properly prepared for hearing and that relevant documentary evidence is duly served on all parties. The Tribunal is entitled to take into account, in appropriate cases, the way in which a case has been handled or prepared for the hearing. It is not every case of poor case handling or preparation which would warrant the making of a funding order on a limited basis, under regulation 8(2) or 8(2B). In the majority of cases, and having regard to the general time constraints under which most representatives in this jurisdiction operate, the Tribunal would be very slow to proceed under regulation 8(2) or 8(2B). However, in our view, a very bad case of poor case handling or preparation in respect of a supplier who has instructed counsel who has discharged his duties duly may amount to special circumstances justifying the Tribunal to make a funding order on a limited basis, in respect of counsel but not in respect of the supplier. This does not encroach upon the regulatory functions of the Immigration Services Commissioner or any designated professional body. The Tribunal's role is complementary to theirs, as well as that of the Legal Services Commission. Parliament cannot have intended to compel the Tribunal to order that a costs of a qualified or an exempt person be paid out of the relevant fund, even in a very bad case of poor case handling or preparation. Besides the fact that such conduct may warrant a complaint being made by the Tribunal to the Immigration Services Commissioner or the appropriate professional body, it would be strange if the Tribunal were to make such a complaint but nevertheless be forced into ordering that the costs of the qualified or exempt person be paid out of the relevant fund.
22. We turn now to the circumstances of this individual case. We have set out at paragraph 7 of the principal determination the documentary evidence in this case. For the purpose of the principal determination, it was sensible to list all the documents of a particular type or from a particular source together, before moving on to documents of a different type or from a different source. For the purposes of this funding determination, it is necessary to set out the documents in a different order, so that it is more readily apparent what documents have been served by the Solicitors for the purposes of the reconsideration hearing, and what have been omitted by them, as follows (the bundle numbers refer to the numbers assigned to the bundles by the Tribunal at the hearing on 14 June 2007):
COLUMN (1)
COLUMN (2)
Documents NOT served by the Solicitors
Documents served by the Solicitors
Bundle 1
Bundle 3
1.
Chronology (page 1 of bundle 1)
1.
Appellant’s witness statement dated 21 May 2007 (pages 1 to 8 of bundle 3) with exhibits thereto (which were the map and the letter from the British Red Cross at items 2 and 3 below)
2.
Appellant’s witness statement dated 18 March 2005 (pages 2 to 8 of the bundle 1)
2.
Map at page 6 of bundle 3
3.
Map of Sudan (page 42 of bundle 1)
3.
Letter from British Red Cross, dated 23 May 2007 (page 8 of bundle 3)
4.
More detailed map of Sudan (page 43 of bundle 1)
4.
Report from Ms. Powling, the Appellant's social worker, dated 2 March 2007 (pages 9 to 10 of bundle 3)
5.
Report by Appellant’s social worker, Ms. Lucy Powling, dated February 2005 (pages 44 to 45 of bundle 1)
5.
Letter from the Appellant's doctor (Dr. Jenkins) dated 31 May 2007, at page 11 of bundle 3)
6.
Supplementary report by social worker, Ms. Powling, dated 16 March 2005 (page 46 of bundle 1)
Bundle 4
7.
Report by Dr. D L Bell, Consultant Psychiatrist dated March 3005 (pages 47 to 53 of bundle 1)
6.
Map of Sudan (page 1 of bundle 4)
8.
Report dated 17 March 2005 by Ms. Alice Conroy, a director of “Pathways to Independence” (pages 54 to 56 of bundle 1) [This is the organisation which provides the Appellant's accommodation]. Ms. Conroy states in her report that she was writing in her capacity as the Appellant's personal adviser and the manager of his accommodation
7.
Expert report of Peter Verney dated 6 March 2007 (pages 17 to 30 of bundle 4)
[This report, which was of a generic nature, does not replace the report dated 24 March 2005 in bundle 1].
9.
Expert report prepared by Mr. Peter Verney, dated 24 March 2005 (pages 57 to 61 of bundle 1)
8.
Expert report of Sarah Maguire dated June 2006 (pages 125 to 148 of bundle 4)
[Again, this report, which is of a generic nature, does not replace the specific report dated 2 June 2006 in bundle 2.]
Bundle 2
9.
Documents in respect of “XXX” the A’s home region (pages 159 to 177 of bundle 4).
10
Appellant’s witness statement dated 2 June 2006 (pages 1 to 3 of bundle 2)
11
Psychological report by Ms. C. Jennings, Chartered Child Psychologist, dated 7 March 2006 (pages 4 to 17 of bundle 2)
12
Expert report by Ms. Sarah Macguire, prepared specifically for the Appellant’s case, dated 2 June 2006 (pages 18 to 35 of bundle 2)
Document submitted by Counsel after a phone call to the Solicitors
12
Letter from the Union of the People of Darfur UK & N. Ireland, dated 23 December 2005, in which they state that they have interviewed the Appellant and are of the opinion that he is a “Darfurian, a member of the Messirya tribe and that he originates from Abeyi in Darfur” (pages 41 to 42 of bundle 2). [This was relevant to the factual issues before the Tribunal]
10
Second (undated) letter from the Appellant's doctor, Dr. Jenkins.
14
The Appellant's membership card in respect of the Union of the People Darfur U.K. & N. Ireland (pages 43 to 44 of bundle 2)
Found by the Tribunal in loose-leaf form in the Tribunal's file by chance at the hearing:
15
Letter from Ms. Powling, the Appellant's social worker, dated June 2006.
Bundle 4 (which was served by the Solicitors) also contained background material of a general nature, which Counsel confirmed had been overtaken by the Court of Appeal’s judgment in AH (Sudan) and Others v. SSHD [2007] EWCA Civ 297. There was also a bundle 5 which was served by the Solicitors, entitled “Case-law bundle”. Counsel confirmed that the cases included in that bundle had been overtaken by the judgment in the AH case. At the date when bundles 4 and 5 were served, the judgment in the AH case had not been delivered. Therefore, one can understand why these documents were included because bundles 4 and 5 were served in March 2007 whereas the judgment in the AH case was delivered on 4 April 2007. At the hearing, Counsel submitted his skeleton argument and a newspaper article dated 21 May 2007 entitled: Darfur: United Nations Mission reports new round of clashes”.
23. As already noted, the Tribunal was only in possession of bundles 1 and 2 because of the efforts of the Tribunal itself in identifying, at its own initiative and prior to the hearing date, the documents which appeared to be missing and in ensuring that sufficient copies were made for the use of panel members. The Tribunal cannot be expected to perform this task. This is part of a representative's role. However, it is fortuitous that the Tribunal did arrange in advance for the missing documents to be copied because the hearing would not otherwise have concluded on the day (see paragraph 31 below).
24. The documents contained in bundle 1 were first served on 22 March 2005 in connection with the hearing of the appeal before Immigration Judge Jhirad. Although the Appellant was represented at that time by [the previous representatives], it was clear at the hearing on 14 June 2007 that Counsel was familiar with the documents in bundles 1 and 2. He had been provided with these by the Solicitors.
25. Leaving aside the chronology and the two maps in column (1) (on the assumption that the chronology was not necessary, nor were the maps because there was a map in one of the bundles served by the Solicitors), the fact is that the Solicitors failed to serve a number of documents which were specific to the Appellant’s case – no fewer than 12 documents. They were important documents in the context of this case. In giving his reasons for ordering the Tribunal to reconsider its decision, Neuberger LJ specifically referred to the report of Dr. Bell. He considered that there was a possibility of the Immigration Judge reaching a different conclusion if she had considered the contents of Dr. Bell's report instead of “attaching little weight to it”. As stated above, the Tribunal subsequently decided, at the first stage of the reconsideration, that the Immigration Judge had materially erred in law by rejecting Dr. Bell's report on the grounds that it was produced after a consultation of 1 ½ hours. Despite the obvious relevance and importance of Dr. Bell's report, the Solicitors failed to serve it. Further, it is significant to see that they also failed to serve other documents which were also important in this particular case – that is:
- two witness statements by the Appellant;
- three reports / letters from his social worker;
- the report of his Chartered Child Psychologist;
- the report of his adviser at Pathways to Independence;
- the letter from Union of the People of Darfur UK & N. Ireland, dealing with the factual issues which the Tribunal had to decide;
- the Appellant’s membership card with this organisation.
as well as the specific experts' reports to which we will now turn.
26. Whilst the Solicitors did serve a report from Mr. Verney and a report from Ms. Macguire (see items 7 and 8 in column (2) above), the contents of these were of a generic nature and did not relate specifically to the Appellant's case. They failed to serve the reports from these two experts which had been prepared specifically for the Appellant's case (see items 9 and 10 in column (1)) and on which Counsel relied at the hearing. The letter from Ms. Powling dated June 2006, which was referred to several times by Counsel at the hearing, was only discovered by the Tribunal on its file by chance on the hearing day.
27. In respect of item 9 in column (2), three copies of bundle 4 were submitted. Each had an index at the front. This document was item number 10 in the index for bundle 4. The Tribunal should have been in possession of three identical copies of bundle 4. It was not. Only one bundle and one index was correct. Item 10 for that bundle reads:
“Documents in respect of “Abeyi” the A’s home area.”
28. At pages 159 to 177 of this copy of bundle 4 was a document entitled: “Protocol between the Government of the Sudan and the Sudan People’s Liberation Movement/Army (SPLM/A) on the resolution of Abyei conflict” dated 26 May 2004”. This was the correct document. However, item 10 on the index of the remaining two copies of bundle 4 read:
“Documents in respect of Labado, the A’s home area.”
and pages 159 to 178 of these two bundles contained a document relating to Labado which was entirely irrelevant to this appeal.
29. By chance, the Tribunal discovered that the panel members’ copies of bundle 4 were not identical. At that point, the Chairman handed all the documents which were in her possession to Counsel and requested Counsel to check each document and each page of each bundle to ensure that the Tribunal was in possession of the correct documents and that it was in possession of all the documents, explaining that the Tribunal did not wish to find itself in the position of having inadvertently overlooked relevant evidence. Counsel said that, during the short adjournment, he would telephone the Solicitors to find out the reason why all the documents had not been served. When the hearing re-convened, Counsel informed us that the relevant caseworker at the Solicitors had informed him that the correct copies of bundle 4 had been served on the Tribunal and that, if the bundles were mixed up, this must be due to the fact that similar bundles for another client (who was from Labado) had also been served at the same time and that it must be the Tribunal which had mixed the bundles up for the two cases. We informed Counsel that, even if this explanation was accepted, it does not touch upon the remaining issue – i.e. the failure to serve several important documents relating to this case.
30. We have explained at paragraph 8 above the circumstances leading to the receipt by the Tribunal on 21 June 2007 of a letter from the Solicitors. This letter only deals with item 10 of bundle 4. In this regard, the explanation is that the Appellant’s case was previously listed for hearing on 15 March 2007 at 10.00 a.m in Court 81, and another case was listed for hearing on the same day in the same court at 2.00 p.m. The Solicitors contend that there must have been an inadvertent mix up by the Tribunal of the bundles for the two cases. Even if this is accepted (which we are prepared to), this only deals with one aspect of the difficulties we experienced with the documentary evidence; we specifically told Counsel that, in addition, we required an explanation for the failure to submit the documents listed in column (1) above. No explanation is given in this regard in the letter from the Solicitors. We therefore assume that their failure to address this issue on two occasions – i.e. via Counsel when he telephoned them on the hearing day and in their letter of 21 June 2007 – means that they have no explanation, or none that would stand up to any reasonable scrutiny. The failure to serve the documents described at paragraphs 25 and 26 should be considered together with the fact that, after the conclusion of the first-stage reconsideration and under cover of the Notice of Reconsideration hearing dated 5 February 2007 (Ref: AIT48b), the Tribunal issued directions to the parties that, no later than 5 working days before the hearing date, witness statements of the evidence to be called at the hearing were to be served, together with a paginated and indexed bundle of all documents to be relied on at the hearing, including any expert evidence.
31. It is plain from the principal determination in this case that the documents referred to in paragraphs 25 and 26 above formed an important part of the Appellant's case. Indeed, they formed the core of his explanations for the credibility issues in this case, and the core of his case that his return to Sudan would be in breach of the Geneva Convention and his human rights. The reconsideration hearing on 14 June 2007 ended just before 6.00 p.m. Accordingly, there would not have been sufficient time during the course of the day to allow Counsel an opportunity to make copies of relevant documents to be relied upon, nor would there have been sufficient time for the Tribunal to arrange this to be done. But for the fact that the Tribunal had made copies in advance of the hearing date on its own initiative, it would have been necessary to adjourn the hearing, or at least to adjourn it part-heard.
32. For these reasons, we find that the failure of the Solicitors to serve a number of documents which are important in the context of the case as a whole (as described in paragraphs 25 and 26 above) and the fact that no blame can be attached to [the previous representatives] or to Counsel (who did his best in a bad situation to assist us) amount to “special circumstances” within regulation 8(2) entitling the Tribunal to make a funding order on a limited basis, i.e. in respect of Counsel's fees and the costs of [the previous representatives] only.
33. Decision:
In accordance with regulation 8(2B) of the amended CLS Regulations, we make a section 103D order on a limited basis, as follows:
(a) We order that the costs of the application for reconsideration (i.e. the costs of [the previous representatives] in making the application for reconsideration) are to be paid out of the relevant fund, as defined in rule 33;
(b) We order that Counsel's fees (with respect to the costs of the preparation for reconsideration and the costs of the reconsideration) are to be paid out of the relevant fund, as defined in rule 33.
The costs incurred by the Solicitors are excluded.
Ms. D. K. Gill Date: 25 October 2007
Senior Immigration Judge
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