Khan, R (on the application of) v Secretary of State for the Home Department

Where an arguable judicial review claim cannot be effectively presented because the claimant is unrepresented, unprepared and lacks the case papers, the interests of justice may require an adjournment. The court should take account of the arguability threshold and the need for anxious scrutiny, even where the claim appears weak. Any adjournment may properly be granted on stringent terms, including a final opportunity to obtain representation or prepare to act in person.

The claimant sought judicial review. Permission was initially refused on the papers but was granted at an oral hearing after the court concluded that the claim was arguable, although weak. The substantive hearing was then adjourned because the claimant’s solicitors had failed to prepare the case and came off the record.

Before Mr Justice Treacy, the claimant sought a further adjournment. She had been unable to obtain legal aid, had no present legal representation, and did not have the case papers available. The central issue was whether the hearing should proceed despite those difficulties or be adjourned in the interests of justice.

1. Adjournment granted. The hearing was adjourned to the first available date after two months, with costs reserved.
2. The fact that a claim appeared weak did not justify requiring the claimant to proceed where she could not participate effectively. Permission had already established that there was at least an arguable case, and the court emphasised that judicial review claims require anxious scrutiny.
3. The claimant was not responsible for the earlier failure to prepare the case. She had promptly sought new solicitors and explored legal aid, but had no realistic prospect of obtaining public funding or privately paying for representation.
4. Proceeding immediately would have meant that any arguable case would not genuinely be presented for consideration and evaluation. In those circumstances, the interests of justice required an adjournment.
5. The adjournment was granted with clear and stringent terms. The claimant was expected either to obtain legal representation or to prepare to present the case herself. No further indulgence would be granted. Arrangements were also made for her to obtain a further copy of the case papers if necessary.

The judgment records that permission was initially refused on the papers by Wyn Williams J on 15 May 2008. At an oral hearing on 15 August 2008, HHJ Behrens, sitting as a Deputy High Court Judge, granted permission. The substantive hearing was later adjourned by HHJ Birtles after the claimant’s solicitors failed to prepare the case. Mr Justice Treacy granted a further adjournment on stringent terms.