A senior immigration judge has hit out at lawyers who he claims waste the tribunal’s time.
In VA (Solicitor’s non-compliance: counsel’s duties: Sri Lanka), The Honourable Mr Justice McCloskey said the appellant firm, which he referred to as solicitors, had ‘blackmailed’ the Upper Tribunal into adjourning a hearing. The firm was named as London practice Linga & Co.
McCloskey also told barristers in the tribunal it was not their job to defend solicitors who had failed to conduct cases properly.
The forthright judgment explains that the tribunal has heard a spate of cases in recent months where legal representatives have been found at fault.
It linked to another case, Shabir Ahmed & Ors (sanction for non compliance), in which resources were wasted, papers filed late and the Upper Tribunal treated with ‘sustained and marked disrespect’.
In VA, McClsokey said the upper tribunal has already spelt out to the legal profession that ‘it will not hesitate to have recourse to the full panoply of powers at its disposal to prevent this kind of shameful event materialising’.
He added: ‘Those powers include the initiation of contempt of court proceedings, wasted costs orders and the publication of rulings of this kind on the tribunal’s website.’
He explained his 'blackmail' accusation by saying the appellant’s firm had acted similarly on a previous occasion in July.
‘This is aptly described as "blackmail", in the figurative sense, because while the tribunal could have refused to adjourn the hearing and insisted upon proceeding, this was in truth a theoretical possibility only given the virtual inevitability that any constitution of the tribunal would have given paramount importance to the appellant's right to a fair hearing – in this discrete context, a professionally prepared and properly presented hearing.’
McCloskey said it was ‘inexcusable’ that no representative from the appellant’s firm was present for last month’s hearing and he demanded that a witness statement be received by 9am the following day: this demand was met, although the judge stressed in an addendum that it had done nothing to allay the tribunal’s concerns about the conduct of the appeal.
The judge said there was ‘no question of conveniencing the appellant’s representatives in any way’ when the matter returned to the tribunal this month.
He said many lessons should be learned from the case, including that it was not counsel’s duty to defend the instructing solicitor if they had failed to comply with directions.
‘The misconception to the contrary was evidence in the present case and has manifested itself in others,’ said McCloskey. ‘Counsel represent their client: they do not represent their instructing solicitor.’
V P Lingajothy, principal of Linga & Co, said the previous solicitors involved in the case had not handled matters properly and he was keen at all times to see that justice was done for his client, who spoke no English and had found it difficult to give instructions.
'I maintain my stance that the appellent's evidence should be heard fresh,' he added. 'There were procedural snags we encountered. We procrastinated on certain issues but never compromised the client's best interests despite submitting some of the documents late. I asked the learned judge [if he wanted documents] not at all or late and he said if you have it then submit them.
'Counsel knows better what the instructing lawyers were going through and she was well within her rights to defend us as she knew the tactical difficulties.
'Cases [like these] are very complicated and evidence is difficult to get hold of and piecemeal. Unfortunately the learned judge has not appreciated that.'