DVP & Ors, R (On the Application Of) v The Secretary of State for the Home Department

This Divisional Court hearing under the Hamid jurisdiction addressed procedural abuses in urgent judicial review applications rather than the substantive merits. The court held that Duncan Lewis LLP had materially abused the Administrative Court's "urgents" procedures: form N463 was incompletely and improperly completed, the claimants’ team failed to disclose critical adverse facts (including that none of the six claimants were then resident at Penally Camp), and the application improperly purported to act on behalf of others without instructions. The court applied principles from the Administrative Court Judicial Review Guide, CPR (including part 54.8 and CPR 1.1(2)(d)) and the Hamid line of authority and concluded the proper response was a public reprimand in this judgment, the court accepting apologies and training measures offered by the firm.

This case concerned a Hamid referral arising from Swift J's order of 30 November 2020 which identified serious defects in an urgent application for interim relief and expedition relating to the use of Penally Camp for asylum accommodation. The applications were judicial review claims issued by six named claimants (asylum seekers) represented by Duncan Lewis LLP seeking, among other reliefs, urgent interim measures including transfers and a prohibition on further transfers into the Camp and a declaration as to curfew power. The urgent application procedure required completion of form N463 and compliance with the duty of candour.

Procedural and factual background:

• The pre-action correspondence and claim forms challenged the Secretary of State's decisions about Penally Camp; the first five claimants had been transferred out on 29 October 2020 and the sixth on 18 November 2020.
• Duncan Lewis filed a single form N463 for six claims and cross-referred to extensive papers rather than setting out reasons for exceptional urgency on the face of the form; the N463 claimed consideration within 72 hours but did not disclose that the claimants were no longer at Penally or explain the delay.
• The SSHD (via GLD) fileda prompt succinct response opposing expedition and identifying standing and other difficulties; the claimant team criticised that intervention but also filed a reply.

Issues framed: (i) whether the application was genuinely urgent or an abuse of the urgents procedure; (ii) whether form N463 had been properly completed and the duty of candour observed; (iii) whether the claimants and their lawyers could properly seek interim relief on behalf of others without instructions; and (iv) what sanction or disposition was appropriate under the Hamid jurisdiction.

Court reasoning and disposition:

• The court recited the requirements of the Administrative Court Judicial Review Guide and the duties on advocates when using the urgent procedure, emphasising that reasons for urgency must be on the face of form N463 and that failure may lead to attendance and sanction under Hamid.
• The court found no exceptional urgency: the critical events that could have given rise to urgency had occurred earlier (in particular the GLD letter of 6 November 2020), and the urgent application was issued weeks later after the claimants had been moved.
• Section 1–5 of N463 were inadequately completed; cross-references to voluminous papers and failure to identify central facts (including that none of the claimants were at Penally) breached the duty of candour required for without-notice applications. The claimant team lacked instructions to act for persons remaining at Penally and could not properly bring class-type interim relief on their behalf.
• Having considered disciplinary referral, the court accepted apologies and remediation steps and concluded that marking its disapproval by this public judgment was sufficient in the circumstances.

The court found a significant abuse of the Administrative Court's urgent application procedures. It concluded that the form N463 and related urgent application failed to disclose material adverse facts (including that none of the six claimants remained at Penally Camp), that the claimants’ representatives purported to seek relief on behalf of others without instructions, and that the duty of candour and the Guide’s procedural requirements were breached. The court accepted the solicitors’ and counsel’s apologies and training measures and disposed of the Hamid referral by issuing this public judgment marking its disapproval rather than referring the matter to the regulators.

The matter was referred to the Divisional Court under the Hamid jurisdiction by Swift J following his order dated 30 November 2020 after an urgent Administrative Court hearing. Swift J had refused the interim relief and expedition and referred the papers for Hamid consideration; the Hamid hearing before the Divisional Court considered the conduct of Duncan Lewis LLP in relation to the urgent procedure and the filing of form N463. No further appellate history is stated in the judgment.