Candour in Context: who’s activism should we spotlight?

The travails of Duncan Lewis, Stephanie Harrison QC and the rest of her team, in the R (DVP & Others) v SSHD
[2021] EWHC 606 (Admin)
[the DVP case] can be seen as grist to the Government’s anti-activist lawyers mill. It’s a toe-curling judgment. I am going to talk about the facts of the case at some length, before turning to look beyond the concerns about professional misconduct discussed in DVP in the second section.

What happened in DVP?

Following an urgent application before the Administrative Division Swift J, “identified significant concerns about the conduct of the claims by Duncan Lewis LLP.” The concern was that the Court’s urgent procedure had been abused. The concern was that the application was not urgent; failed to provide the required information; made applications on behalf of people who were not clients; and, most importantly for my interest, breached their duty of candour. Note that no concern was apparently raised about Counsels’ conduct at this point (it was a team of three).  Lead Counsel on the urgent application represented the firm and the named solicitors on the Hamid application to decide whether they should be referred to the SRA.

The duty of candour, arising on without notice applications, “means that the claimant must disclose any relevant information or material fact which either supports or undermines his case.”  Material facts and “issues that are likely to arise and the possible difficulties in the application or underlying claim” need to be, “presented in a fair and even-handed manner, and in a way which is not designed simply to promote his own case.”  The court depends on practitioner integrity in this regard partly because urgent applications may be made with without any notice, or with only limited notice, to the opposing party.

Mr Hossain, director of the Public Law and Immigration Departments at Duncan Lewis, is named in the judgment but another solicitor and a trainee who participated in the case are not. The two barristers working with Ms Harrison QC are also not named. The President states in her judgment that, “We do not know when Duncan Lewis instructed counsel, but it was well before the issue of the urgent application.”

The case itself concerned six claimants who’s detention at Penally Camp ended “well before”, the urgent application was issued all the claimants had been moved from Penally Camp. But Duncan Lewis continued to make claims on behalf of those claimants, “for all asylum seekers to be transferred out of the Penally Camp”.  Lawyers for the SSHD resisted the claim partly on the basis “your client(s) have no standing to challenge other people’s accommodation provision.  Your firm simply cannot know what is in the best interests of those it does not represent, and this part of your letter suggests a potentially dangerous overreach.” 

The application for interim relief and expedition, we are told, was settled by counsel and the Court goes through its inadequacies in some detail. I hope I do no one a disservice by paraphrasing the courts view as the application was a prolix mess and containing material omissions. They contrast it with the SSHD’s submissions which were, “prepared [at short notice] by the GLD were succinct and to the point. They were just over 4 pages long.”

The claimants legal team responded to these submission to criticise the GLD for intervening to give their view. The court is acidic in its assessment:

47. Contrary to what was said by solicitor 2 and by counsel, the court is always assisted on an urgent application if it has been informed by the defendant of its position.  This is a matter that should be obvious to any legally qualified person conducting litigation, but in any event, is made clear in the Guide itself (see para 19 above). The position taken therefore by the claimants’ legal team, both solicitors and counsel, was inappropriate and wrong.

The Court is doubly concerned because, “It was only that letter that brought the Claimants’ circumstances clearly to the Court’s attention.”

The referral for Hamid hearing prompted a partial response and then a fuller apology. Mr Hossain’s (of Duncan Lewis) apologised on behalf of all solicitors and counsel involved in his written evidence the court but the explanation he gave was, according to the court, was “wrong on several levels”. In particular no explanation was given as to why the application had been deemed urgent or “why the claimants had taken umbrage at the written submissions filed by the SSHD in answer to the claimants’ urgent application, in contravention of what he had been asked to do by the “show cause” letter.” I note here the policing of lawyers taking a bad point in litigation, something to which the courts frequently comment on in other contexts.

In advance of the final hearing the court was also provided with a statement from “counsel” (presumably the whole team):

“Counsel wish to make it clear that responsibility for this matter cannot be properly attributed to Mr Hossain alone.  The preparation of the claim was a collective endeavour for which counsel, including leading counsel must and do take joint responsibility”. 

The court makes clear its concerns with counsel. At the hearing itself, “Ms Harrison submitted the matter had become exceptionally urgent on 18 November 2020, but could provide no cogent reason why this was so.” And the court found that, “there was nothing urgent, let alone exceptionally urgent about the claimants’ request….  This was a clear abuse of the procedures for urgent applications.” Nor could Ms Harrison “show us where on the application for interim relief the reasons for urgency were set out.”  Nor to, “to any document in the electronic bundle which identified the reasons why the claimants’ application was urgent, let alone exceptionally urgent.  This is not surprising given there were no reasons to justify an urgent application at all.”  Nor was, the “significant delay in making the application …identified, let alone explained. And, the application, “contained no summary of the SSHD’s position on the application.” Harrison’s stance that the Home Office position on the application was “misconceived” is also rubbished.  “The best Ms Harrison could do in this context, which was not good enough, was to draw attention to one sentence in the application for interim relief and expedition which said that the SSHD insisted that the claimants had no standing.”

On standing, “Ms Harrison submitted that the claimants brought the claim on behalf of others as part of a “systemic and generic challenge” to, amongst other things, the way people were transferred into the Penally Camp.” I would be reasonably confident, and certainly assume for the sake of argument, that the Camp was unsuitable for its use (it is now being closed down, with the Red Cross – amongst others – having criticised conditions); and that there were serious barriers in the way of unrepresented detainees getting legal advice and/or funding to bring a case to challenge their treatment. Indeed, “There were nine “claimants in waiting” at the Penally Camp ready to instruct Duncan Lewis, but they were not the claimants.”

70. Further, all lawyers involved were obliged to comply their professional obligations.  Duncan Lewis were not instructed by all the people in the Penally Camp, and they could not so act without instructions.  This is fundamental.  The court relies on the integrity of solicitors and counsel complying with their professional obligations, including that they act only on the instructions of those clients they represent. 

Because the claim form did not not identify the information set out above Mr Hossain is identified by name as being responsible for having breached the duty of candour (it seems, at least in part, through lack of supervision). In terms of the hearing of the matter, “The claimant’s advocate has particular duty, so far as it is consistent with urgency of the application, to ensure this obligation is complied with.  Duncan Lewis and counsel in this case were seemingly oblivious to these obligations, or their importance.” No Counsel is named here inspite of the particularity of this duty.

The judgment ends:

80. The court will not tolerate the abuse of its process, and will not hesitate to refer those who do so, to their professional regulators.  We have given very careful consideration to doing so here.

81. In determining what should now be done, we have regard to the fact that Mr Hossain and counsel have all accepted responsibility for what happened and have apologised to the court.  We also have regard to the regret Ms Harrison expressed on behalf of the lawyers concerned, that Swift J’s criticisms of their application had necessitated a hearing before the Divisional Court when the court is under significant pressure in the midst of a pandemic.  Mr Hossain too personally expressed his profound regret for his failures and  those of Duncan Lewis; and said that training and procedures had been put in place to ensure such failings did not occur again.  Mr Hossain told us that he had learned from these failings and, annexed to his witness statement a training note produced for all solicitors working in public law at Duncan Lewis.  We accept these apologies and have concluded it is sufficient in this case for the court’s disapproval of what happened to be marked by this public judgment. 

Beyond the case itself

The case raises all sorts of issues. I have gone through the facts in some detail as I do not want to give the impression I am excusing the conduct here. It looks like the kind of conduct the court has every right to be critical of. There is an interesting question as to whether the regulators should, or could, investigate regardless of the court’s view. They have both a broader remit and potentially more information available to them, both now and through investigating, to decide whether a prosecution is merited. Indeed, a related question is whether the practitioners should have self-reported already. And does the court’s decision obviate the need for that? It raises interesting questions too about the adequacy of judicial review, and the openness of our systems to group actions, in cases of public interest.

One might surmise too, from the facts of the case, that a sense of humanitarian outrage, or even a desire to protect the rule of law and the administration of justice, drove the lawyers forward to try the standing point. To the extent that this might be used to excuse professional misconduct, I would resist that argument. Moral outrage may well have clouded the lawyers’ judgments about the urgency and need for candour in the application, but that is not justification for misconduct.

A second argument might be similar, that the government fails to disclose documents or takes outrageously bad points with sufficient regularity to justify tit for tat. I hear this quite a bit, and it would be good to have systematic evidence of the problem. I thought of the Trojan Horse case when preparing for this blog; the Salmond case (where Counsel stood up straight); and of the Post Office Litigation. In that case there was late disclosure of a document that appears to evidence criminality as one barrister, Paul Marshall, sent that document to the police. One of the Court of Appeal judges was prompted to threaten contempt, a point inelegantly dealt with and then postponed. Marshall, to his credit I think, felt obliged to withdraw feeling conflicted out by the court’s approach.

Of course each case turns on its own facts, but there may be a pattern of judges being more tolerant of disclosure failing by government or big organisations, partly, but perhaps not solely, because it is relatively easy for an organisation to say it was cock-up not conspiracy. Judges have understandable, and probably justified, sympathy with the lot of Government lawyers who report more ethical pressure than others working in-house, but the courts and the regulators may need, I surmise, to stand back a little less here.

As a justification for professional misconduct, I think tit for tat is wrong, but it does lead me to the point I really do want to make about this case. The judges have protested about problems in immigration and have begun to do something about it via Hamid hearings. I think there are questions about whether they should do this or simply be more ready to refer cases to the regulators to investigate (either publicly or not). Public referrals get publicity whereas the regulators are barred from revealing private referrals and complaints. It follows there is different treatment in these cases with significant consequences for public debate in the profession and beyond on lawyers failings.

But more broadly than that, is it fair for immigration, or “activist” lawyers, to be singled out? I do not know, if immigration practice is particularly bad then yes, but I do want to raise the question about whether this should be the sole focus. I am heartily sick of reading commercial cases where the judges complain about the culture of commercial litigators without doing anything much about it. Anybody remember the polished witness statements of Berezovsky? The faclitation agreements of Rolls Royce? Barclays flirtation with a Brazilian in-house team (not really but you get my point)? Or this Clifford Chance case? The idea that it is most often high street lawyers, if I can use a more neutral term, stretching the envelope for their clients is very likely false, if for no other reason than their funding almost certainly disincentivises it, whereas for commercial firms… well, you work it out. Contrast the Duncan Lewis case with Valbonne Estates. There are some remarkable similarities, indeed this case may well be significantly worse: a duty of candour breached; misleading evidence; a failure to explain and correct the errors in a timely and appropriate way.

The activists for business clients seem to get away with a somewhat easier ride though. Even in Valbonne the judge is reasonably clear what her concerns: “that the court was seriously misled” and she does, “not accept that the inaccuracy of the information given to the court could have been inadvertent or accidental.” But she stops short of saying there was professional misconduct, and may or may not have referred the case to the SRA. That is a reasonable response; she does not have all the evidence before her to enable a clear view. In the Duncan Lewis case, the court dug deeper. The Hamid process provides a vehicle for so doing. Why have such a process for one type of case and not another? Judges have decided to be more active on one type of case and remain relatively passive on another. We should think about that when criticising activist lawyers for letting the side down.

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