In addition, on 20 October 2023, Dr Anmar wrote “to whom it may concern” that the Claimant was awaiting life-saving treatment. It was urgent and he had a priority housing need. The Defendant ignored all the Claimant’s medical evidence both before and during the course of these proceedings and I find that remarkable and less than ideal.

The permission decision of October 2024 gave directions for Haringey to file a statement of facts and grounds of defence. Haringey did not do so.

Mr A was accommodated. Thereafter nothing much happened until February 2025, which I’ll come back to, and then a day before this hearing, a consent order was filed, which disposed of the claim save as to issues of costs and Haringey’s application for relief from sanction.

On  to the relief from sanction application, without which Haringey were debarred from taking part in the judicial review hearing, even though it was now on the issue of costs alone. But the Court did not entertain the application

With Haringey debarred, the Court moved on to costs of the claim. These were awarded, as Mr A had achieved substantially what he sought, although a £21,000 schedule was knocked down to £13,500.

So, a triumph for the claimant’s legal team? The desired result and costs? Not so fast… A further issue to be decided on costs was Haringey’s application for a wasted costs order against Mr A’s solicitors and counsel.

I’ve taken a decision not to name said counsel and solicitors in this post from here, though they certainly are in the judgment itself. This is from a sense that they will already be rather humiliated (and possibly facing further problems from regulators).

In February 2025, Haringey’s new person in charge of the case had identified that some five cases cited in Mr A’s grounds for judicial review, settled by counsel, could not be identified or found to exist. This included apparent High Court and Court of Appeal decisions cited and with ratios. Haringey wrote to Mr A’s solicitors asking for an explanation of these citations, and also raising a misinterpretation of s.188(3) as being a duty, not a discretion, then requesting costs and the discontinuance of the claim, eventually receiving what the Court described as ‘a remarkable communication’ in response.

This said, in part

“We regret to say that we still do not see the point you are making by correlating any errors in citations to the issues addressed in the request for judicial review in this matter. Admittedly, there could be some concessions from our side in relation to any erroneous citation in the grounds, which are easily explained and can be corrected on the record if it were immediately necessary to do so. What you have not done is to refute the veracity of the points and legal arguments that prevailed against your position and any failures of your client to measure up to its obligations under the 1996 Act. (…)

We do not think that our duty of care should go so far as to provide legal interpretation of the laws for your benefit, but we hasten to say that section 188(3) provides for discretionary action in relation to section 202 and so long as that duty falls outside section 189B(2). It is not a broad brushed discretion that results from the ‘May’ in that subsection. We therefore do not quite grasp in what context you say: Haringey have a discretion. There is no obligation.

So let us agree that the citation errors can be corrected on the record ahead of our April hearing. Apart from adding our deepest apologies, we do not consider that we are obliged to explain anything further to you directly. (…)

We hope that you are not raising these errors as technicalities to avoid undertaking really serious legal research. Treating with citations is a totally separate matter for which we will take full responsibility. It appears to us improper to barter our client’s legal position for cosmetic errors as serious as those can be for us as legal practitioners. For the foregoing reasons alone, your claim for costs and the costs of your letters are rejected as without foundation. Your response or arguments in defence cannot rely on errors in citation to prevail but on the evidential and meritorious basis of your points.

No explanation for the citations or correction had subsequently been made.

So, on the wasted costs order, the Court found that this was distinct from the judicial review itself, so Haringey’s submissions could be made.

On the letter from Mr A’s solicitors, the Court was, shall we say, unimpressed

That was, I must say, a remarkable letter. I do not consider that it was fair or reasonable to say that the erroneous citations could easily be explained and then to refuse to explain them. Nor do I consider it was professional, reasonable or fair to say it was not necessary to explain the citations. The assertion that they agreed to correct the citations before April never came true, for they never did. The assertion that no further explanation or obligation to provide an explanation was necessary or arose is, in my judgment, quite wrong. Worst of all, the assertion that the citations are merely cosmetic errors is a grossly unprofessional categorisation.

But then on to the false citations themselves and erroneous statement of duty in the grounds.

Counsel for C did not attempt to argue at the hearing that the s.188(3) power was a duty, rather than a discretion. But the case that was cited in support of that in the grounds – “R (on the application of El Gendi) v Camden London Borough Council (2020) EWHC 2435 (Admin)” did not exist. There had been no explanation of this from the claimant’s side until the hearing. The explanation also did not go well.

What I was told from the Bar today by Ms (X) is that she kept a box of copies of cases and she kept a paper and digital list of cases with their ratios in it. She dragged and dropped the case of El Gendi from that list into this document. I do not understand that explanation or how it hangs together. If she herself had put together, through research, a list of cases and they were photocopied in a box, this case could not have been one of them because it does not exist. Secondly, if she had written a table of cases and the ratio of each case, this could not have been in that table because it does not exist. Thirdly, if she had dropped it into an important court pleading, for which she bears professional responsibility because she puts her name on it, she should not have been making the submission to a High Court Judge that this case actually ever existed, because it does not exist.

And so on for the other three supposed High Court cases and then, in respect of a citation to R (on the application of Balogun) v London Borough of Lambeth (2020) EWCA Civ. 1442

Ms (X) had moved on from fake High Court cases to fake Court of Appeal cases. I have no difficulty with the submission that the Respondent local authority had to ensure fair treatment of applicants in the homelessness review process, but I do have a substantial difficulty with members of the Bar who put fake cases in statements of facts and grounds.

As the Court says

It is such a professional shame. The submission was a good one. The medical evidence was strong. The ground was potentially good. Why put a fake case in?

There was no hesitation in finding that this conduct had beeen improper, unreasonable or negligent.

I consider that it has been all three. It is wholly improper to put fake cases in a pleading. It was unreasonable, when it was pointed out, to say that these fake cases were “minor citation errors” or to use the phrase of the solicitors, “Cosmetic errors”. I should say it is the responsibility of the legal team, including the solicitors, to see that the statement of facts and grounds are correct. They should have been shocked when they were told that the citations did not exist. Ms (X) should have reported herself to the Bar Council. I think also that the solicitors should have reported themselves to the Solicitors Regulation Authority. I consider that providing a fake description of five fake cases, including a Court of Appeal case, qualifies quite clearly as professional misconduct.

There was a suggestion from counsel for Haringey that use of AI may have been involved, but no finding could be made on this as counsel for Mr A had not been sworn and cross examined. But whatever was behind it, putting in fake citations without checking was improper and unreasonable conduct.

Wasted costs for dealing with the fake citation issue and the wasted costs application awarded against Mr A’s counsel and solicitors at £2,000 each.

Could it get worse, you ask, wiping the sweat from your brow? Why yes, yes it could.

The Court then revisited the costs award to the Claimant. In view of the fake citations in the grounds, counsel’s fees were reduced by £2,000, and the solicitor’s fees by £5,000 because of their involvement. So the claimant’s costs were reduced to £6,500 from the inital £20,000.

And, as the coup de grace

I am going to do two further things which I am going to want recorded in the order. The first is that I order at public expense a transcript of these extemporary judgments that I have provided in this case, all three of them. Secondly, I will require the Defendant to send the transcript to the Bar Standards Board and to the Solicitors Regulation Authority. It will be a matter for both counsel whether they comply with, what I believe are their obligations of self-reporting and reporting of knowledge of another, and it will be a matter for the solicitors’ firm as to whether they have a similar requirement of self-reporting under the Solicitors Regulation Authority rules.

Comment

I don’t think my buttocks have unclenched since reading this judgment earlier today. I have winced so hard and so long, it is now permanent.

Why, why, why would you do this? The claim was strong in any event, on actually existing case law as well as the facts.

And then why, why, why when called out on the fake citations, would you not admit it and replace them with real ones, because they do exist (apart from the s.188(3) ‘duty’ point)?

Solicitors – you can’t take counsel being right for granted where the other side is raising fake citations! Check them yourself, ask counsel to provide copies or links, but do not pretend this is a minor issue. It has to be dealt with if raised, it really, really does, and it is the solicitor’s responsibility as well as counsel’s. Do not call it a ‘minor issue’ in correspondence!