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

The Upper Tribunal’s discretionary power to strike out proceedings for non-compliance must be exercised consistently with the overriding objective and the three-stage approach to relief from sanctions. The Tribunal must assess the seriousness and significance of the breach, its explanation, and all the circumstances, giving substantial weight to efficient litigation and enforcement of procedural requirements.

Strike out is draconian. The Tribunal must consider delay, prejudice, repeated defaults, misuse of process and whether a lesser sanction, including wasted costs, is adequate. A reinstatement application requires consideration of the reason for the default, delay and prejudice, but those factors are not exhaustive.

Judicial-review pleadings and applications to amend must identify the impugned decision, grounds, facts, evidence and remedy clearly, and must be pursued proactively and timeously.

The applicant, a Sri Lankan national, had made unsuccessful asylum-related challenges and was removed to Sri Lanka in July 2014. Her renewed application for permission to seek judicial review remained extant.

In August 2014, the Upper Tribunal permitted amendment to challenge later decisions and the removal. It directed the applicant to file a properly pleaded amended claim and evidence bundle. Her representatives failed to comply with that order and with further directions made in January 2015. They neither sought variations nor provided an adequate explanation.

At the March 2015 hearing, the Secretary of State sought strike out. The applicant subsequently sought reinstatement. The Tribunal also considered the appropriate standards for judicial-review pleadings, amendments following later decisions, and wasted costs.

1. The judicial-review claim was struck out under rules 8(3)(a) and (b) of the Tribunal Procedure (Upper Tribunal) Rules 2008. The representatives’ successive and total failures to obey two sets of directions were egregious, obstructed fair and just case management, wasted judicial resources and misused the Tribunal’s process.

2. The Tribunal held that its discretionary strike-out power should be exercised by applying the three-stage approach in Denton v White, [2014] EWCA Civ 906, together with the principles drawn from R (Hysaj) v Secretary of State for the Home Department, [2014] EWCA Civ 16633. It must assess the seriousness and significance of the breach, the reason for it, and all the circumstances. Relevant matters include the administration of justice, promptness, intentionality, explanation, repeated defaults, responsibility for the breach, prejudice, the effect on hearing dates and observance of the overriding objective.

3. Strike out remains a draconian sanction. The Tribunal must consider whether another adequate sanction is available, including a wasted costs order. Repeated defaults will ordinarily be more serious than a single breach. Here, no acceptable explanation, mitigation or adequate alternative sanction existed. The apparent merits of the proposed reconfigured claim were not exceptionally strong and could not displace the case-management assessment.

4. The reinstatement application was refused. The principal factors are the reason for the failure causing strike out, undue delay in seeking reinstatement and prejudice to the other party. They are not exhaustive. Although the application was prompt and the Secretary of State had no special prejudice, it advanced no new evidence, explanation, apology, timetable or arguable error in the strike-out decision.

5. The Tribunal gave procedural guidance. Judicial-review pleadings must clearly identify the impugned act, public-law grounds, remedy, material facts and supporting evidence. Where a later decision supersedes the original target, an amendment application must be made proactively and timeously; its outcome depends on the merits and the overriding objective.

6. A wasted costs order was made jointly against the applicant’s solicitors and counsel for costs caused by the aborted hearings. The balance of the respondent’s costs was payable by the applicant, with assessment by the Tribunal if not agreed.

• Upper Tribunal (Immigration and Asylum Chamber): the applicant’s judicial-review claim was struck out, her reinstatement application was refused, and costs orders were made.
• Upper Tribunal: an earlier application for permission to apply for judicial review was refused on 22 May 2014; the applicant sought an oral renewal.
• First-tier Tribunal: the applicant’s appeal against refusal of her asylum claim was dismissed on 17 December 2013. Permission to appeal to the Upper Tribunal was refused on 23 December 2013.