Barristers and solicitors cautioned on reacting to new rules

Barristers and solicitors concerned about changes to the way asylum, immigration and citizenship cases are run in the High Court should hold off on writing “manifestos”, a judge has warned.

Mr Justice Richard Humphreys said that if lawyers wanted to discuss the new rules, set out in a practice direction issued before Christmas, his “door was open” and that “if we don’t work something out you can issue your manifestos then”.

Solicitors and barristers might have different sets of concerns, and he was willing to meet them separately if they wanted, he said.

Colm O’Dwyer SC, addressing the judge in court, said clarifications the judge had issued on Friday were very welcome and had been “significant in some areas”.

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Mr Justice Humphreys said the directions had not come “out of the blue”, that there had been three cases in 2018 that involved concerns about proper disclosure to the court, and that he had engaged in a consultation process with senior practitioners on both sides before the direction was finalised.

The direction sets out new obligations for solicitors in terms of producing certain information about their clients, and their clients’ families, for the courts.

Duty of inquiry

It refers to solicitors’ “duty of inquiry” and how observance of this duty could help ensure that the courts are furnished with “the most accurate version of events possible” so that judges are not misled.

In his clarification, Mr Justice Humphreys referred to three controversial cases in 2018 that raised issues as to disclosure.

In one of those cases, the court ordered that the solicitor of a Polish man who had resisted deportation should pay the costs of the Minister for Justice.

During Monday’s sitting, another case mentioned before Mr Justice Humphreys was one where the Minister for Justice was considering seeking a similar so-called “wasted costs” order against a solicitor.

Solicitors who practise in the area of asylum and immigration law are concerned about the new obligations contained in the practice direction.

Judicial review

A sub-committee of the Law Society’s human rights committee is to consider the matter later this week, according to the society’s director general , Ken Murphy. An already-scheduled meeting of the society’s council on Friday is also to discuss the matter.

Asylum and immigration decisions account for approximately half of the judicial review proceedings lodged in the High Court each year.

Most asylum and immigration cases do not qualify for legal aid and are fought on a no-foal-no-fee arrangement, whereby the applicant’s legal team does not get paid if the applicant loses.

The new practice directions involve increased costs and more work for solicitors acting for applicants, and so make becoming involved in this area of law even less attractive than it is now, according to practitioners.

Solicitors are also concerned that the new obligations might be later extended to other areas of their work, including personal injuries claims.