Chamberlain: Entirely predictable that breach would make hearing impossible
The High Court has strongly criticised the Government Legal Department for repeatedly missing deadlines and only applying for extensions after they passed – penalising it with indemnity costs.
Mr Justice Chamberlain, the judge in charge of the Administrative Court, said: “It is difficult to avoid the impression that the secretary of state and his representatives in this case came to regard procedural directions as optional, assuming that—in a case such as the present, where the claimants require disclosure to plead and argue their case—the court will have no option but to excuse default.
“They appear also to have assumed that, if a substantial hearing had to be rescheduled (as was obviously likely), any detriment would be borne by the other parties and the court, and not by the secretary of state or his team.”
However, that was not to be the case, as he ordered the government to pay the claimants’ costs of various hearings caused by the failures, as well as the costs attributable to the adjournment of the substantive hearing that had been fixed for tomorrow, all on the indemnity basis.
Further, whatever the outcome of the claims, the government will not be able to recover the costs of preparing the documents filed late in breach of an order by Mr Justice Mould.
The effect of this “may be limited” as the claimants were legally aided, “but I have no doubt that it is justified in principle”.
The three claims are test cases challenging decisions by the defence secretary in relation to Afghan nationals seeking relocation to the UK.
It was only in March that the Administrative Court issued a practice statement warning that “too many applications for extensions of time are being made at the last minute and/or without proper supporting reasons or evidence, apparently in the belief that the application will not be considered until the applicant has had the extra time sought, so the extension will become a fait accompli”.
That is what happened here. By July 2026, Chamberlain J recorded, there had been “very many applications by the defendant for extensions of time to file evidence and other documents, many of them made after expiry of the relevant deadline”.
The “first indication” that the defendant would then not be complying with Mould J’s 6 August order in relation to disclosure came after the deadline had passed and it then missed a further deadline set by Mr Justice Fordham.
The defendant also failed to meet Mould J’s late September deadline to file and serve the skeleton argument, amended detailed grounds and other aspects of disclosure, and only filed an application for an extension four days later, which Chamberlain J described as “a textbook example of bad litigation practice”.
Some of the material had been filed by the time of the hearing before him on 2 October, but the claimants’ counsel said they did not have enough time to go through it and prepare for the 13 October hearing.
The judge observed: “The new evidence to be served was substantial, so it was entirely predictable that a unilateral decision to breach the court’s order (as extended by agreement) would make the hearing impossible.”
Counsel for the defendant “accepted that criticisms could be made of [its] conduct” but insisted the defendant’s team had been working hard with limited resources.
“I place very little weight on that submission, because there is almost no evidence to support it,” Chamberlain J said, noting that while the defendant could have filed detailed witness statements supporting the applications to extend time, it did not.
“Instead, the information supporting the applications consisted, in each case but one, of a few wholly unspecific sentences on the form N244.”
Even if the defendant’s team had been doing their best throughout, “their conduct was characterised by an apparently total lack of planning or organisation, reflected in the late stage at which the applications were made”.
The judge continued: “There is no evidence that they had any regard for the effect that their delay would have on the other parties or their representatives.
“They simply assumed that those other parties would have to modify their own working plans, irrespective of any other commitments, to fit the convenience or capacity of the secretary of state’s team.”
He also stressed the negative impact on the court’s “limited administrative and judicial resources”.
Chamberlain J ordered a further directions hearing to relist the hearing and made the costs orders, before setting out the court’s expectations over applications for extensions.
“If good reasons are not provided, the application may be refused. Even if the application is granted, the consequences may include costs orders of the kind made here.”
The judge, who will shortly join the Court of Appeal, directed that a copy of the ruling be sent to the Treasury Solicitor.
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