Ejegi v Migrant Advisory and Advocacy Service

On an appeal, the court should address the grounds and issues properly before it. It should not devise a new basis for allowing an appeal in the absence of the respondent, particularly where the lower court’s decision has not been shown to be plainly wrong. A delay of several weeks in formalising an application may remain within the judge’s discretion where the applicant has promptly made clear the relief sought. Where a judge has heard the claimant and made an order, the absence of a transcript does not justify overturning the decision without a proper evidential basis. A negligence claim against an immigration-advice service may be supported by regulatory findings concerning the service’s competence and handling of the client’s affairs.

Ejegi, a Nigerian citizen, paid £450 to the Migrant Advisory and Advocacy Service while receiving help with immigration proceedings. After her claim was struck out for non-attendance, District Judge Wicks reinstated it. Deputy District Judge Gilford later heard Ejegi and ordered MAAS to pay £450, although MAAS did not attend. On MAAS’s appeal, HHJ Mitchell allowed an out-of-time appeal against the reinstatement order on grounds raised of his own motion, including delay and apparent lack of merit. The central issue was whether he was entitled to proceed in that way and overturn the county court outcome.

1. Appeal allowed. The order of Deputy District Judge Gilford requiring the respondent to pay £450 was restored.
2. Ward LJ held that HHJ Mitchell erred by allowing an out-of-time appeal primarily on the basis that Ejegi had not acted promptly. In the respondent’s absence, and without an application or argument raising that point, he should not have constructed fresh grounds for allowing the appeal. Ejegi had promptly indicated, by her letter of 23 January, that she sought relief from the striking-out order. The delay of several weeks before making the formal application was not so excessive that District Judge Wicks lacked discretion to forgive it.
3. HHJ Mitchell also erred in treating the claim as lacking obvious merit. He should have confined himself to the judgment entered by the judge who had heard Ejegi. There was no transcript of that judgment and no proper basis for concluding that it was plainly wrong.
4. The claim could properly be treated as one concerning negligent conduct of MAAS’s affairs. The Commissioner’s report, which found that MAAS had failed to demonstrate the necessary knowledge and competence to meet Ejegi’s needs, was before the county court judge. MAAS’s own written response addressed the allegations as a question of negligence. There was therefore ample evidence on which the judge could conclude that the services had been negligent and that the money should be refunded.
5. Moses LJ agreed with Ward LJ. [2011] EWCA Civ 715

1. Court of Appeal (Civil Division) allowed Ejegi’s appeal and restored the order requiring MAAS to pay £450.
2. Central London Civil Justice Centre HHJ Mitchell allowed MAAS’s out-of-time appeal against the reinstatement order, raising delay and apparent lack of merit of his own motion.
3. Uxbridge County Court District Judge Wicks reinstated the claim. Deputy District Judge Gilford later ordered MAAS to pay £450.
4. Uxbridge County Court Deputy District Judge Mendel had initially struck out the claim after Ejegi failed to attend, following which Ejegi applied to set the order aside.