Harrisingh& Ors, R (on the application of) v Secretary of State for the Home Department

Where solicitors decide that proceedings will not continue, they must take an appropriate formal step. Depending on the circumstances, this may be a notice of discontinuance, a consent order, or coming off the record after reasonable attempts to obtain instructions. Doing nothing is unacceptable.

An application to stay removal invokes the court’s process against executive action. It must therefore be carefully examined, comply with procedural requirements, and have a properly arguable basis. A late, meritless application that ignores an earlier order may constitute a serious abuse of process.

The judgment dealt with three matters before the Divisional Court.

• Harrisingh: the matter was adjourned pending the attendance of a lawyer said to have given relevant advice.
• The second matter concerned follow-up steps after B [2012] EWCA 370 (Admin), where solicitors had failed to deal properly with proceedings that were not going to continue.
• The third matter concerned an asylum-seeking family whose renewed judicial review application and urgent application to stay removal had been rejected as wholly without merit and a serious misuse of process.

The court considered the proper procedural steps for terminating inactive proceedings and the professional responsibilities arising when solicitors seek an urgent stay of removal.

1. In the second matter, the court recorded three available courses where proceedings were effectively not going to proceed: filing a notice of discontinuance with the client’s consent; lodging a consent order requiring the consent of the client and, where relevant, the Treasury Solicitor; or immediately coming off the record where attempts to obtain instructions had failed. Solicitors could not simply do nothing.

2. In the matter concerning “N”, the renewed application merely re-argued matters already rejected by the court as totally without merit. The application to stay removal was issued only two days before the scheduled removal date, did not address the earlier order, did not explain the delay, and lacked a properly arguable basis.

3. The court agreed with Kenneth Parker J that the stay application was wholly without merit and amounted to a serious abuse of the court’s process. The solicitor had a professional duty to examine the application carefully, particularly because it had been prepared by a student without a training contract. The solicitor’s explanation that he had acted in haste was rejected.

4. The court considered referring the firm, the responsible solicitor and the student to the Solicitors Regulation Authority. It deferred that step conditionally for one month, requiring the senior partner to provide documented evidence of strict compliance with court procedures and adequate training, including external training, for those handling such work. The court indicated that referral would follow if the explanation and evidence were inadequate.

5. The Harrisingh matter was adjourned. The renewed application in the N matter was to be withdrawn on the solicitors’ advice, and the firm was required to report on its remedial steps and its pro bono arrangements.