Fordham: No place for such an attitude
A London council will not recover its costs “in any circumstances” after its solicitor’s late compliance with orders left a litigant in person (LiP) in an “intolerable position”, a judge has said.
Mr Justice Fordham said [1] the London Borough of Tower Hamlets “should have apologised properly” after the solicitor, a Mr Onuba, served documents for a judicial review permission hearing “much too late” on Mabel Abdul, litigation friend for her disabled four-year-old son Rayaan.
Ms Abdul received a 418-page hearing bundle at 7pm the previous evening, a 272-page bundle of authorities at 8.11am that morning and yet further documents at about 9am.
She was balancing looking after Rayaan and “fighting his claim as his advocate”. The judge went on: “On the face of it, she has herself conducted these proceedings with full and prompt compliance with all rules, practice requirements and directions.
“I am not convinced that any litigant should be placed in the position of receiving materials in the way that she did.
“But receipt of those materials, as a mother in a case of such importance for her young child, at a hearing which could have terminated the proceedings in the High Court, and lacking the experience to know how the court would react, was an intolerable position to be placed in.”
The judge had “no hesitation” in declining to allow the council to rely on any of these documents and disallowing it from recovering any costs of their preparation, and any costs of the permission hearing, whoever eventually won.
At the heart of the case were questions about the council’s statutory duties, the way in which it approached Rayaan’s needs and the role played in decision-making by “resources and perceived resource limitations”.
A judge refused Ms Abdul’s application for urgent interim mandatory relief in September, ordering that the claim be expedited and listed for a permission decision after directions had been complied with.
These included that the claimant must serve the claim form and a chronology within 14 days, which Ms Abdul did the following day, while the council had a further 14 days to file its grounds for contesting the claim and any written evidence to be relied on.
The council should have responded by 2 October, but it had not done so by 14 October, when the High Court emailed Mr Onuba to tell him to comply.
He responded with an email beginning, “Please can you let me know what I am supposed to do”. The day before the 20 October hearing, he said he had not responded to the order as he had not “actually noticed or reviewed” it when the court sent it in September.
Mr Onuba sent the court various documents on 16 and 19 October, which the judge said constituted “a very clear set of breaches of an order of the court, as well as contraventions of the guidance in the JR Guide.
“The skeleton argument, itself unfairly late, could not through the back door properly or fairly provide the substance which should have been within detailed grounds as directed by the court. There was a wholesale failure to acknowledge the defaults. There was no attempt or even reference to applying for extensions of time.
“It was all as if compliance was optional, a belated industry with a brief apology would do the trick, and the court’s wish to make an informed decision in the public interest would leave it with no option but to excuse the default. There is no place for such an attitude.”