VA v The Secretary of State for the Home Department

Where instructing solicitors have defaulted in the conduct of proceedings, counsel's duty is to the client and to the court or tribunal. It does not include defending the instructing solicitors. A solicitor responsible for the case should proactively attend a hearing at which the default is likely to be examined, equipped to explain it.

The Tribunal may adjourn where representative default prevents a professionally prepared and properly presented fair hearing. It may also use its available powers to protect its process and further the overriding objective.

This was an elderly immigration appeal in which the appellant's representatives had previously obtained an adjournment on 14 July 2016. At the relisted hearing, the representatives were again unprepared and no representative of the instructing solicitors' firm attended.

The Upper Tribunal considered that the appellant's right to a fair hearing made an adjournment necessary in the circumstances. It directed the principal solicitor to attend on the following day and to provide a comprehensive witness statement explaining the history of the proceedings. The solicitor attended and gave an explanation, but this did not allay the Tribunal's concerns.

1. The appeal was adjourned and relisted. Although the Tribunal could theoretically have refused an adjournment, the representative default meant that a professionally prepared and properly presented hearing could not realistically proceed consistently with the appellant's right to a fair hearing. The resulting inconvenience and delay were serious, particularly for the litigants.

2. Counsel do not represent or defend their instructing solicitors. Where a solicitor has failed to comply with procedural rules, practice directions or case-management directions, counsel's duty is to the client. Counsel must be alert to the likelihood of judicial inquiry, but, unless personally implicated, the Tribunal should not expect counsel to answer for the solicitor's conduct. The solicitor with carriage of the case must instead attend proactively and fully equipped to explain the default.

3. The Tribunal drew support from Shabir Ahmed and Others (sanctions for non-compliance) [2016] UKUT 00562 (IAC). It reiterated that it may use the full range of available powers, including contempt proceedings, wasted-costs orders and publication of rulings, to prevent misuse of its process and further the overriding objective.

4. The principal solicitor was directed to attend in person and file a comprehensive witness statement. Following his attendance, the Tribunal recorded that his explanation merited some sympathy but did not resolve its wider concerns about the conduct of the appeal.

• Upper Tribunal (Immigration and Asylum Chamber): the appeal was adjourned after repeated representative default and was directed to be relisted at the first available date in January 2017.
• The originating immigration decision and any earlier tribunal stage are not stated in the judgment.