Visas: JR became academic
A barrister made subject to a wasted costs order because of his conduct of an immigration judicial review has been reprimanded and fined by the Bar Standards Board (BSB).
Upper Tribunal Judge Jackson found Andrew Marc Rosemarine’s pursuit of the case “unreasonable and negligent” and ordered that he be referred to the regulator.
The barrister admitted the allegations made against him, leading to a determination by consent – this is where a panel of the BSB’s independent decision-making body makes a decision on the papers which the barrister accepts. It avoids the need for a disciplinary tribunal.
Mr Rosemarine, called in 1989, practises from his own chambers, International Law Chambers, in Salford. In 2019, he acted on a direct access basis for two Syrians over the Home Office’s refusal to grant them visas to visit family in the UK.
The Home Office made a settlement offer that various judges told the applicants rendered the JR academic – because it withdrew the visa refusal – and that there was a costs risk in continuing. But they made a number of further applications and took the claim to a hearing, where the tribunal spent nearly a day dealing solely with costs.
Judge Jackson in October 2021 ordered the Home Office to pay costs up to 30 June 2020, the day before it made the offer, and that the applicants should pay the Home Office £6,000 in costs for the period thereafter.
The judge then directed that Mr Rosemarine should pay the Home Office’s costs by way of wasted costs.
He had begun the hearing by saying: “Ma’am, there’s a deadly virus in your tribunal. It’s highly contagious. Your tribunal has caught it from the Home Office.”
The judge described this as “a wholly unprofessional and unnecessary way to begin what should have been impartial, objective legal submissions and a statement made in thoroughly poor taste given the Covid-19 pandemic”.
She went on: “Whilst I accept that this application has been pursued by litigants acting in person, with an interested party conducting the litigation pursuant to a power of attorney, they have at all times been assisted and advised by Mr Rosemarine of counsel on a direct access basis.
“Unfortunately, Mr Rosemarine has demonstrated repeatedly in the content and tone of his submissions, the same failure to undertake an objective or rational assessment of the claim, or the means by which it would appropriately and proportionately be resolved.”
She did not find that Mr Rosemarine’s conduct reached the threshold of “improper”, although “at least some of the examples of submissions made were arguably improper”.
But, as a whole, it was “unreasonable and negligent”, she continued. “The pursuit of the application for judicial review, but more significantly the nature of correspondence to and allegations against [the Home Office] together with repeated applications for costs without proper foundation were wholly unreasonable and permit of no reasonable explanation.
“The applications made and proposed consent orders cannot be described in any way as advancing a resolution of the case, but on the face appear antagonistic and designed to harass.”
Mr Rosemarine’s comment that he had been acting in the best interests of his clients “did not detract from an objective assessment of the conduct itself”.
The judge added that the same issues “fall equally under the heading of negligence” and his pursuit of the case was “far below the competence reasonably to be expected of ordinary members of the bar”.
The BSB panel said Mr Rosemarine now appreciated that he “failed to show the degree of detachment” that he ought to have shown. He was “ashamed and embarrassed” at aspects of his conduct, accepting it was “poor in its overzealousness”.
The barrister stressed that he did not intend to obstruct the administration of justice or make a personal gain. “Rather, everything he did was in a (he now accepts, misguided) attempted to achieve the best outcome he could for the applicants.”
The panel “agreed that the individual matters charged may not all have been so serious as to amount to professional misconduct, but that cumulatively they demonstrated a course of conduct over a period of three months that disclosed submissions, applications and proposed consent orders that appeared irrational, antagonistic and designed to harass.
“Overall, the panel concluded that Mr Rosemarine’s conduct met the threshold for professional misconduct.”
It had been caused, “in part, by poor judgement and an over-zealousness in pursuit of the client’s case, combined with health issues at the time. It did not appear to be malicious or cynical”.
The harm done was “relatively limited, causing some unnecessary resources to be consumed in the court system and some expense to a government department”.
The panel said it would have fined Mr Rosemarine around £2,500 but reduced it to £300 in light of his “financial information… remorse, insight and low likelihood of repetition”, and also reprimanded him.
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