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

Communications from a defendant to the Administrative Court about removal arrangements must comply with Civil Procedure Rules 1998, CPR 39.8, once proceedings have been filed or threatened. Submissions about the claimant or previous litigation are not routine administrative communications and must be copied to the other party unless there is a compelling reason. A private notification sent before proceedings are filed or threatened may identify the planned departure time and the defendant’s lawyers. After that point, the defendant must keep disclosure of the departure time under review by reference to the duty of candour and CPR 39.8(3). Fairness may require disclosure of more detailed timing information where it affects whether an out-of-hours application is needed. A general policy of withholding charter-flight details does not override litigation obligations.

The claimant, who faced removal to The Gambia following a deportation order, issued repeated judicial review claims. His sixth claim challenged the rejection of his trafficking claim and included an application for interim relief to stay removal. Before the hearing, the Government Legal Department sent the Administrative Court a confidential email identifying the charter-flight departure time, its lawyers and counsel, and bundles concerning the claimant’s earlier litigation. The email was not copied to the claimant.

The court refused interim relief in an oral judgment and addressed separately whether the email complied with the rules governing communications with the court, the duty of candour and fairness.

1. The email contravened CPR 39.8(1). It was sent after proceedings and an application for interim relief were before the court. It contained substantive submissions about the claimant’s previous litigation, including an allegation that he had failed to provide a complete picture. It was therefore not a routine, uncontentious and administrative communication under CPR 39.8(2). No compelling reason under CPR 39.8(3) justified withholding that part from the claimant.
2. CPR 39.8 reflects the common-law principle that a party is entitled to know the case against him and the evidence relied upon. Exceptions are narrowly confined. There are no special procedural rules for immigration removal cases, so CPR 39.8(1)–(3) governs.
3. Before proceedings have been filed or threatened, a private notification may give the court the departure time of a planned charter flight and the contact details of the lawyers instructed for related litigation. CPR 39.8(1) is not engaged because the sender’s client is not yet a party to proceedings. The information may help the court allocate and prioritise an urgent application.
4. After proceedings have been filed or threatened, the defendant must keep any withholding of the intended departure time under review by reference to the duty of candour and CPR 39.8(3). On the facts, precise disclosure was unnecessary because the hearing had already been fixed and the departure time could not affect the claimant’s decisions. In other cases, fairness may require a “not before” time or more detailed information where timing affects whether an out-of-hours application is needed. Home Office policy does not override the defendant’s obligations as a litigant.
5. Future communications not copied to the other party should identify that fact, state whether CPR 39.8(2) or (3) is relied upon, explain any compelling reason, describe what the claimant has been told, and record compliance with the duty of candour. A non-compliant communication should be returned under CPR 39.8(5), with possible sanctions or case-management action under CPR 39.8(6).