View source for ICLR Hysaj v SSHD (2014) EWCA Civ 1633, (2014) MHLO 135

''PRACTICE — Appeal — Notice of appeal — Application for extension of time to file notice — Guidance on correct approach to such applications — CPR rr 3.1(2)(a), 52.4(2)''

'''Regina (Hysaj) v Secretary of State for the Home Department'''

'''Fathollahipour v Aliabadibenisi'''

'''May v Robinson'''

[2014] EWCA Civ 1633;  [2014] WLR (D)  538

CA:  Moore-Bick, Tomlinson, King LJJ:  16 December 2014

The approach to applications for extensions of time for filing a notice of appeal should be the same as for applications for relief from sanctions and should attract the same rigorous approach.

The Court of Appeal so stated in giving guidance in three unrelated cases as to the correct approach to be taken when prospective appellants filed notices of appeal out of time and sought an extension of time under CPR r 3.1(2)(a). The court (i) granted an extension in the case of Dinjan Hysaj who filed a notice of appeal 42 days out of time when seeking to appeal against the decision of Ouseley J [2014] EWHC 832 (Admin) dated 26 March 2014 dismissing his claim for judicial review of the Secretary of State for the Home Department’s decision to treat as void his naturalisation as a British citizen; (ii) refused an extension in the case of Bahram Aliabadibenisi who filed a notice of appeal nine months out of time when seeking to appeal against an award of costs by Jay J in the Queen’s Bench Division on 30 July 2013 in civil proceedings brought by Reza Fathollahipour; and (iii) refused an extension in the case of John Robinson who filed a notice of appeal six years out of time when seeking to appeal against the decision of Judge Taylor sitting as a High Court judge in Middlesbrough dated 15 October 2008 on an application brought by Christine May in mental health proceedings relating to Mr Robinson’s brother ordering that the parties had come to agreement.

'''MOORE-BICK LJ''', having reviewed the authorities, said that the approach to be taken to applications of the kind now under consideration was now too well established to be overturned. It followed that in his Lordship’s view the principles to be derived from Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 and Denton v TH White Ltd (De Laval Ltd, Part 20 defendant) [2014] 1 WLR 3926 applied to these applications. In Denton’s case the court had affirmed the guidance given in Mitchell’s case, paras 40–41, but explained the approach in more detail as follows, at para 24. “A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the ‘failure to comply with any rule, practice direction or court order’ which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate ‘all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]’.” It was that more detailed guidance to which judges should now look when considering applications under CPR r 3.9 and applications for extensions of time for filing a notice of appeal made after the time for doing so had expired. In the context of the principles to be derived from Denton’s case it was convenient to deal with some questions of more general application.

(a) Public law cases. The first question concerned the significance, if any, of the fact that an appeal raised questions of public law rather than merely private rights. Although many public law cases raised matters of great public interest, that was not invariably the case and indeed many private law cases raised questions of great significance to the public as a whole. Quite rightly, in his Lordship’s view, the Rule Committee had not made special provision for appeals from the Administrative Court to the Court of Appeal and it would be quite wrong for the court to construct a special regime for such appeals outside the rules. Insofar as there was a suggestion to the contrary in R (Mohammadi) v Secretary of State for the Home Department [2014] EWHC 2251 (Admin) his Lordship respectfully disagreed with it. None the less, his Lordship would accept that the importance of the issues to the public at large was a factor that the court could properly take into account when it came at stage three of the decision-making process to evaluate all the circumstances of the case.

For similar reasons his Lordship was unable to accept that the court could construct a special rule for public authorities. His Lordship was well aware that the resources of many public authorities were stretched to breaking point, but in his Lordship’s view they had a responsibility to adhere to the rules just as much as any other litigants. In Mitchell’s case the court had stated clearly that, in the case of a solicitor, having too much work would rarely be a good reason for failing to comply with the rules and in his Lordship’s view the court should not apply a different standard to public bodies. However, as the court pointed out in BD (Iran) v Secretary of State for the Home Department [2007] 1 WLR 2278, there were certain kinds of public law proceedings, for example, appeals concerning claims for asylum and humanitarian protection, in which particular care needed to be taken to ensure that appeals were not frustrated by a failure on the part of a party’s legal representatives to comply with time limits. The nature of the proceedings and the identification of the responsibility for any delay, were in his Lordship’s view factors which it might be appropriate to take into account at the third stage of the process. In that way the principles identified in the BD (Iran) case, para 23 could be applied as appropriate in the context of considering the overall circumstances of the case. Finally, it could not be emphasised too strongly that the principle of reasonable co-operation was of general application. The more robust approach to compliance with the requirements of the rules typified by Mitchell’s case should not be taken as encouragement to refuse reasonable extensions of time or to seek tactical advantage in every minor default. The court had power to express its disapproval of such action by an award of costs and should exercise it robustly in order to discourage inappropriate satellite litigation.

(b) Shortage of funds. In his Lordship’s view shortage of funds did not provide a good reason for delay. His Lordship could well understand that litigants would prefer to be legally represented and that some might be deterred by the prospect of having to act on their own behalf. None the less, in the modern world the inability to pay for legal representation could not be regarded as providing a good reason for delay. Unfortunately, many litigants were now forced to act on their own behalf and the rules applied to them as well.

(c) Litigants in person. The fact that a party was unrepresented was of no significance at the first stage of the inquiry when the court was assessing the seriousness and significance of the failure to comply with the rules. The more important question was whether it amounted to a good reason for the failure that had occurred. Whether there was a good reason for the failure would depend on the particular circumstances of the case, but his Lordship did not think that the court could or should accept that the mere fact of being unrepresented provided a good reason for not adhering to the rules. That was the view expressed by the majority in Denton’s case, para 40 and, with respect, his Lordship entirely agreed with it. Litigation was inevitably a complex process and it was understandable that those who had no previous experience of it should have difficulty in finding and understanding the rules by which it was governed. The problems facing ordinary litigants were substantial and had been exacerbated by reductions in legal aid. None the less, if proceedings were not to become a free-for-all, the court must insist on litigants of all kinds following the rules. In his Lordship’s view, therefore, being a litigant in person with no previous experience of legal proceedings was not a good reason for failing to comply with the rules. The Civil Procedure Rules were available free online on the website of the Ministry of Justice and to that extent were widely available. What the ordinary person required, however, was more help in discovering and understanding the rules and some basic guidance about the way in which proceedings should be conducted. If, as seemed inevitable, the courts could expect to see an increasing number of litigants in person, assistance of that kind would become essential if the administration of justice was not to be undermined.

(d) The merits. If applications for extensions of time were allowed to develop into disputes about the merits of the substantive appeal, they would occupy a great deal of time and lead to the parties’ incurring substantial costs. Only in those cases where the court could see without much investigation that the grounds of appeal were either very strong or very weak would the merits have a significant part to play when it came to balancing the various factors that had to be considered at stage three of the process. In most cases the court should decline to embark on an investigation of the merits and firmly discourage argument directed to them. Here too a robust exercise of the jurisdiction in relation to costs was appropriate in order to discourage those who would otherwise seek to impress the court with the strength of their cases: see the recent decision of the Supreme Court in Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] 1 WLR 4495. In Lord Neuberger of Abbotsbury PSC’s view at para 30: “it would be thoroughly undesirable if, every time the court was considering the imposition or enforcement of a sanction, it could be faced with the exercise of assessing the strength of the parties’ respective cases: it would lead to such applications costing much more and taking up much more court time than they already do. It would thus be inherently undesirable and contrary to the aim of the Woolf and Jackson reforms.” In his Lordship’s view exactly the same considerations applied to applications for extensions of time for permission to appeal.

'''TOMLINSON''' and '''KING LJ''' agreed.

'''Appearances:''' Stephen Knafler QC and Sonali Naik (instructed by Duncan Lewis Solicitors) for the claimant in the first case; Samantha Broadfoot (instructed by Treasury Solicitor) for the Secretary of State; Stewart Chirnside (instructed by Day Sparkes Solicitors) for the appellant in the second case; Ali Reza Sinai (instructed by Kingsley Napley LLP) for the respondent in the second case; the appellant in the third case in person; the respondent in the third case did not appear and was not represented.

'''Reported by:''' Alison Sylvester, Barrister.

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