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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hysaj, R (On the Application Of) v Secretary of State for the Home Department [2014] EWCA Civ 1633 (16 December 2014)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1633.html
Cite as: [2015] CP Rep 17, [2015] 1 WLR 2472, [2014] EWCA Civ 1633, [2015] WLR 2472, [2014] WLR(D) 538, [2015] 2 Costs LR 191

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Neutral Citation Number: [2014] EWCA Civ 1633

IN THE COURT OF APPEAL (CIVIL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL
16 December 2014

B e f o r e :

LORD JUSTICE MOORE-BICK
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE TOMLINSON
and
LADY JUSTICE KING

____________________

Between:

Case No: C4/2014/1674
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
Mr. Justice Ouseley
[2014] EWHC 832 (Admin)
Between:
THE QUEEN on the application of
DINJAN HYSAJ Claimant/Appellant
- and -
SECRETARY of STATE for the HOME DEPARTMENT Defendant/Respondent

____________________

Mr. Stephen Knafler Q.C. and Miss Sonali Naik (instructed by Duncan Lewis Solicitors) for the appellant
Miss Samantha Broadfoot (instructed by the Treasury Solicitor) for the respondent

____________________


AND
Case No: A2/2014/1672
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr. Justice Jay
HQ13X03453
Between:
REZA FATHOLLAHIPOUR Claimant/
Respondent
- and -
BAHRAM ALIABADIBENISI Defendant/Appellant
____________________

Mr. Stewart Chirnside (instructed by Day Sparkes Solicitors) for the appellant
Mr. Ali Reza Sinai (instructed by Kingsley Napley LLP) for the respondent

___________________


AND
Case No: A2/2014/3369
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Case No: A2/2014/3369
His Honour Judge Taylor (sitting as a Judge of the High Court)
8NE02880
Between:
CHRISTINE MAY
Claimant/
Respondent
- and -
JOHN ROBINSON Defendant/Appellant
___________________

The appellant appeared in person
The respondent did not appear and was not represented

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Moore-Bick :

  1. These three cases have been heard together to enable the court to give guidance on the approach that should be taken to applications for extensions of time for filing a notice of appeal following the decisions of this court in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795 and Denton v T.H. White Ltd, Decadent Vapours Ltd v Bevan and Utilise T.D.S. Ltd v Davies [2014] EWCA Civ 906, [2014] 1 WLR 3926. In each case the applicant failed to file a notice of appeal within the time prescribed by CPR 52.4(2), which made it necessary for him to seek an extension of time, but there the similarity between the cases ends.
  2. R (Dinjan Hysaj) v Secretary of State for the Home Department
  3. In this case the appellant is seeking judicial review of the Secretary of State's decision to treat as void his naturalisation as a British citizen. The appellant arrived in this country in July 1998 and claimed asylum. He gave a false date of birth in order to pass as a minor and falsely alleged that he had fled persecution in Kosovo. In fact he was from Albania. He was accepted as a refugee and was granted indefinite leave to remain, which would not have occurred if the true facts had been known. In 2004 the appellant applied for naturalisation giving the same information about his age and background and in November 2004 his application was granted. In 2008 the truth came to light, but it was not until February 2013 that the Secretary of State wrote to him to say that his grant of citizenship was void because it had been obtained by impersonation. On 8 April 2013 she served notice of her intention to make a deportation order.
  4. On 13th May 2013 the appellant started his proceedings for judicial review. He argued that the Secretary of State could deprive him of his citizenship on the grounds that it had been obtained by fraud only in accordance with the provisions of section 40(3) of the British Nationality Act 1981 and subject to his right under section 40A of that Act to appeal to the First-tier Tribunal. The Secretary of State, relying on various earlier decisions of this court, argued that, since the appellant's citizenship had been obtained by impersonation, it was a nullity and void ab initio. The matter came before Ouseley J. in the Administrative Court, who held in the light of the authorities that the appellant's grant of citizenship was indeed a nullity and dismissed the claim.
  5. Judgment was handed down on 26th March 2014. In the light of the draft judgment that had been circulated a few days earlier the claimant had prepared written submissions which included an application for permission to appeal. In the event the parties were able to agree the terms of a consent order, which was approved by the judge on 25th March 2014. Paragraphs 5 and 6 of that order provided that the claimant's application for permission to appeal was to be adjourned for consideration on paper and that the defendant's submissions in response were to be lodged and served within 14 days. (In the event they were served over three weeks late.) No provision was made, however, for extending time for filing a notice of appeal. By an order dated 2nd May 2014 Ouseley J. granted permission to appeal.
  6. In order to pursue an appeal it was necessary for the appellant, who had been in receipt of public funding for the proceedings before the Administrative Court, to obtain an extension to his public funding certificate. On 19th May 2014 his solicitors invited the Legal Aid Agency to extend his certificate to cover the appeal and in the event the certificate was extended on 22nd May 2014. At that point the solicitors were in a position to file a notice of appeal on his behalf, but they decided to wait until another claimant for whom they acted, Mr. Agron Bakijasi, whose case raised the same issues as that of the appellant and had been heard at the same time, had arranged the finance necessary to enable his appeal to proceed. In the event, notices of appeal were filed on behalf of both appellants on 27th May 2014, some 42 days out of time. The Secretary of State declined to agree to an order granting the appellant an extension of time, but has not actively opposed his application.
  7. Fathollahipour v Aliabadibenisi
  8. In this case the respondent, Mr. Fathollahipour, and the appellant, Mr. Aliabadibenisi ("Mr. Benisi"), are engaged in contested proceedings in Switzerland. Although the proceedings are primarily of a criminal nature, they include as an adjunct a claim by the respondent to recover a sum of money which he says was stolen by the appellant from a company in his ownership. The details of the proceedings are not relevant for present purposes; it is sufficient to say that they are continuing and that the appellant is contesting both the criminal charges and the respondent's civil claim against him.
  9. On 4th July 2013 on an application made without notice the respondent obtained a freezing injunction against the appellant preventing him from disposing of property in England and Wales up to the value of £400,000. The injunction was obtained under section 25 of the Civil Jurisdiction and Judgments Act 1982 in support of the respondent's claim in the Swiss proceedings. The order contained the usual provision allowing the defendant to spend a specific amount on living expenses and a reasonable sum on legal advice and representation.
  10. On the return date, 12th July 2013, His Honour Judge Seymour Q.C., sitting as a Judge of the High Court, adjourned the matter for a fortnight, directed the appellant to verify his affidavit and statement of assets on oath before a proper officer of the court and gave him an opportunity to file further evidence in opposition to the continuation of the order.
  11. The matter came back before Jay J. on 30th July 2013. The appellant represented himself. On that occasion the judge continued the order, directed that the respondent provide additional fortification for his cross-undertaking in damages and ordered the appellant to pay the costs of and occasioned by the hearings on 4th, 12th and 30th July 2013. He also ordered the appellant to pay £30,000 on account of the respondent's costs by 20th August 2013. The appellant asked the judge for permission to appeal, but his application was refused.
  12. There followed various further proceedings in connection with the freezing injunction. The appellant apparently considered making an application to stay the order for costs but was, he says, persuaded by the respondent's solicitors that it would be a pointless exercise. At all events, he failed to make the payment on account of costs and as a result on 28th August 2013 the respondent's solicitors served a statutory demand on him. On 12th September 2013 the appellant applied to set aside the statutory demand. Once again, he represented himself, but was unsuccessful.
  13. On 28th November 2013 the respondent's solicitors served a notice of commencement of detailed assessment in respect of the respondent's bill of costs. The appellant says that he did not receive it, but on 16th January 2014 the solicitors obtained a default costs certificate in the sum of £82,223.17, which they served on the appellant the same day.
  14. On 20th January 2014 the appellant made an application for an order that the respondent be required to increase the fortification for his cross-undertaking in damages. What prompted him to make that application is unclear. He represented himself, but his application failed and he was ordered to pay the respondent's costs in the sum of £4,550.
  15. On 29th January 2014 the appellant applied to set aside the default costs certificate. This time he instructed solicitors to act for him and was successful. As a consequence the detailed assessment proceedings continued and are still pending. As soon as the appellant's present solicitors were instructed they realised that it was necessary for him to challenge the award of costs made by the judge on 30th July 2013. In order to release sufficient funds for the purposes of an appeal (as well as to pay legal fees incurred in connection with the Swiss proceedings) they wrote to the respondent's solicitors seeking their consent to a variation of the freezing order to enable the appellant to raise money on the security of his flat, which was one of the properties specifically covered by the order. However, they were unwilling to agree and on 28th April 2014 they notified the appellant's solicitors that they had obtained an interim charging order over the property in the sum of £38,950.15.
  16. On 12th May 2014 the appellant's solicitors issued an application to vary the freezing injunction to enable him to raise money by re-mortgaging his flat in order to pay legal fees in connection with both the English and Swiss proceedings. The application was dismissed by Philips J. on the grounds that the appellant had failed to satisfy him that his assets in Iran, the existence and value of which he had disclosed in response to the order, were not available to him for the purpose of meeting his legal fees.
  17. On 27th May 2014, some 9 months out of time, the appellant issued a notice of appeal seeking to challenge the order of Jay J. awarding the respondent his costs of the proceedings on 4th, 12th and 30th July 2013. He now seeks permission to appeal and a stay of execution as well as an extension of time. He says that the judge should have postponed a decision on the costs until after the conclusion of the Swiss proceedings, when it will become clear whether the freezing order was justified.
  18. May v Robinson
  19. The appellant in this case, Mr. John Robinson, has a brother, Melvin, who in 2008 was thought to be suffering from mental illness. Until 2008 Mr. Robinson was his brother's nearest relative for the purposes of the Mental Health Act 1983, but in April 2008 the respondent, Mrs. Christine May, an approved social worker employed by Tyneside Council, sought an order from the High Court appointing South Tyneside Council as Melvin's nearest relative. She made that application because, although two registered medical practitioners had recommended that Melvin be detained under section 3 of the Mental Health Act in the interests of his own health and safety and she as his approved social worker considered that it was necessary for an application to be made for him to be admitted to hospital under that section, the appellant, as Melvin's then nearest relative, objected to it, thereby preventing an application for admission for treatment being made.
  20. The appellant contested the application and was ultimately successful, in as much as the council decided not to pursue the application against him in the light of certain medical evidence which he had by then placed before the court. The appellant had originally been acting in person, but at the suggestion of the judge he obtained legal advice and from the latter part of April was represented by solicitors and counsel. Having incurred a liability for legal fees, the appellant wished to recover his costs from the council. There was an exchange of correspondence between his solicitors and the council, in the course of which his solicitors indicated that they would advise him to accept £628.82 in respect of his costs. However, the negotiations broke down and the matter was left to the court.
  21. In the meantime Melvin had made an application to be joined as a party to the proceedings. On 15th October 2008 His Honour Judge Taylor, having considered correspondence from the parties, made an order in which he recorded that the proceedings were deemed to have been dismissed and ordered the council to pay Mr. Robinson £628.82 in respect of his costs. At the same time he dismissed Melvin's application to become a party. Since the order had been made on the papers, he allowed all parties to seek an oral hearing on notice to the others.
  22. No doubt because the matter had been dealt with on the basis of the correspondence, Judge Taylor did not give a judgment on that occasion. However, Melvin did ask to be heard on his application, so the matter came back before the judge on 17th April 2009. Neither the appellant nor Melvin were present. On that occasion the judge gave a judgment explaining what had happened on the previous occasion and how he had come to make the order in respect of costs. In summary, he understood that the parties had reached agreement and had made an order accordingly. He included in his order a paragraph confirming that there should be no change to the order he had made on 15th October 2008.
  23. The applicant now wishes to appeal against the judge's order in relation to costs. He says that the judge misunderstood the position: there was no agreement between him and the council and the judge should have awarded him the whole of his costs amounting to about £3,000. His notice of appeal was filed on 7th October 2014; it is therefore a little under 6 years out of time (or 5½ years out of time, if one takes as one's starting point the order made on 17th April 2009).
  24. The Rules
  25. CPR Part 52 includes the following provisions:
  26. "54.4(2) The appellant must file the appellant's notice at the appeal court within –
    (a) such period as may be directed by the lower court (which may be longer or shorter than the period referred to in sub-paragraph (b)) or
    (b) where the court makes no such direction, 21 days after the date of the decision of the lower court that the appellant wishes to appeal.
    . . .
    52.6(2) The parties may not agree to extend any date or time limit set by—
    (a) these Rules;
    (b) Practice Direction 52; or
    (c) an order of the appeal court or lower court.
    (Rule 3.1(2)(a) provides that the court may extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for extension is made after the time for compliance has expired).)"
  27. The important words for present purposes are "the date of the decision". Time runs from the date on which the court pronounces its decision, not from the date on which the order is drawn up or the date on which it is sealed, either of which may be some days after the decision has been given. Nor does time run from the determination of the lower court of an application for permission to appeal and an order adjourning an application for permission to appeal does not operate to extend time. Mr. Knafler Q.C. described rule 52.4(2) as a trap for the unwary, but in my view the position is clear and in that respect has remained the same since the CPR came into effect in April 1999. If, as Mr. Knafler suggested, it is not widely known among practitioners in the Administrative Court, that is hardly the fault of those who drafted the Rules. It is the responsibility of practitioners to make themselves familiar with the provisions of the CPR and to comply with them.
  28. Guidance on the proper approach to relief from sanctions is now to be found principally in the two decisions of this court to which I have referred, namely, Mitchell and Denton. Mr. Knafler submitted, however, that applications for an extension of time to file a notice of appeal are neither applications for relief from sanctions nor are they sufficiently analogous to such applications to be treated as if they were. The Mitchell approach, he argued, therefore does not apply and the court should simply make whatever order it considers just in all the circumstances. In support of that proposition he first drew our attention to the passage in parentheses at the foot of CPR 52.6 and then to the decision of the Privy Council in Attorney General of Trinidad & Tobago v Matthews [2011] UKPC 38. He recognised that the decision of this court in Sayers v Clarke Walker [2002] EWCA Civ 645, [2002] 1 WLR 3095 and the cases in which it had been followed posed certain difficulties, but he submitted that it had been misunderstood and misapplied and was not binding on us. He submitted that the court's jurisdiction to extend time was to be found in CPR 3.1(2)(a) and was untrammelled by what for convenience I shall call the Mitchell principles. Mr. Chirnside for Mr. Benisi and Mr. Robinson were content to adopt the submissions of Mr. Knafler in relation to that aspect of the argument. Miss Broadfoot for the Secretary of State did not oppose the application of Mr. Hysaj for an extension of time. Mr. Sinai relied on the line of authority based on Sayers v Clarke Walker.
  29. I accept that all the applications before us are applications for extensions of time under CPR 3.1(2)(a) and are not formally applications for relief from sanctions under CPR 3.9. However, I do not think that Mr. Knafler is able to derive any assistance from rule 52.6, which is concerned with varying the time allowed for filing an appeal notice. Its purpose is to reserve to the appeal court the exclusive power to vary time limits applicable to appeals. The first sentence in parenthesis at the foot of the rule draws attention to rule 3.1(2)(a), which contains the court's power to extend or shorten the time for compliance with any rule, practice direction or court order, but it tells one nothing about the principles on which that power will be exercised under any particular circumstances. That will depend on the circumstances of the individual case, although the principle that the discretion is one to be exercised judicially means that the power should be exercised in a broadly similar way in similar cases. The fact that there is no reference to CPR 3.9 cannot therefore be taken as an indication that in no case is an application for an extension of time under rule 3.1(2)(a) to be approached in a way similar to an application for relief from a sanction. Indeed, in Sayers v Clarke Walker this court considered that there was an analogy between applications under CPR 3.9 for relief from sanctions and applications for an extension of time for filing a notice of appeal made after the time for doing so has expired. It will be necessary to say more about that case in due course, but before doing so it is convenient to refer to Attorney General of Trinidad & Tobago v Matthews.
  30. In Matthews the Privy Council was concerned with Parts 26 and 27 of the Civil Procedure Rules of Trinidad & Tobago, which contained provisions materially identical to those of CPR 3.1(2)(a), 3.8 and 3.9. The defendant in that case had failed to serve a defence within the time prescribed by the rules and the claimant had refused to agree an extension of time, arguing that it was necessary to apply for relief from a sanction. The defendant duly applied for an extension of time and the claimant made a cross-application for permission to enter judgment in default of defence. The judge allowed the defendant's application and dismissed that of the claimant, but the Court of Appeal allowed the claimant's appeal on the grounds that the consequence of failing to comply with the rule was the imposition of an implied sanction, from which it was necessary to obtain relief. The Privy Council, however, rejected that view for a number of reasons. First, it held that the rules imposed no sanction for the failure to file a defence within the prescribed time; provided a defence had been filed before a default judgment had been entered it was effective and no sanction of any kind was imposed. Second, it held that rules 26.6(2) and 26.7 (the equivalent of CPR 3.8 and 3.9 respectively) were to be read together and that rule 26.6(2) was directed to rules, practice directions and orders which themselves imposed or specified the consequences of a failure to comply (paragraph 15). No such sanction was provided for failing to file a defence within the prescribed time and accordingly the case did not fall within rule 26.6(2). In reaching that conclusion the Board expressly rejected the concept of the implied sanction on which the Court of Appeal's decision had been based. The decision in Matthews formed an important part of Mr. Knafler's argument.
  31. The application of the Rules
  32. Mr. Knafler submitted that since CPR 52.4(2) imposes no sanction for a failure to file a notice of appeal within the prescribed time, there is no need to make an application under rule 3.9 and an application for an extension of time is not, and should not be treated as if it were, an application for relief from a sanction. I have considerable sympathy with that submission, which seems to me to reflect the natural meaning of the words used in rules 3.8 and 3.9. In my view the reasoning of the Privy Council which underpins its construction of rules 26.6(2) and 26.7 of the Civil Procedure Rules of Trinidad and Tobago applies with equal cogency to CPR 3.8 and 3.9, which on that view should be understood as being limited in their application to sanctions imposed prospectively by a rule, practice direction or order of the court. If that were so, applications for extensions of time for permission to appeal would not generally be subject to the full rigour of the principles applying to applications for relief from sanctions. However, the matter is not free from authority, as I pointed out recently in Altomart Ltd v Salford Estates (No. 2) Ltd [2014] EWCA Civ 1408, in which similar arguments were advanced.
  33. In Sayers v Clarke Walker the court was concerned with an application to extend time for filing a notice of appeal (then 14 days from the date of the decision) by nearly 8 weeks. It was clearly worried by the fact that approaches to applications of that kind varied considerably among judges in the lower courts and indicated that the "check list" of factors in CPR 3.9 as it then stood should be adopted in order to promote consistency of approach. Brooke L.J., with whom Kay L.J. and Sir Christopher Staughton agreed, said:
  34. "21. In my judgment, it is equally appropriate to have regard to the check-list in CPR 3.9 when a court is considering an application for an extension of time for appealing in a case of any complexity. The reason for this is that the applicant has not complied with CPR 52.4(2), and if the court is unwilling to grant him relief from his failure to comply through the extension of time he is seeking, the consequence will be that the order of the lower court will stand and he cannot appeal it. Even though this may not be a sanction expressly "imposed" by the rule, the consequence will be exactly the same as if it had been, and it would be far better for courts to follow the check-list contained in CPR 3.9 on this occasion, too, than for judges to make their own check-lists for cases where sanctions are implied and not expressly imposed."
  35. The decision was not referred to in Matthews, but it is possible that this passage was the source of the "implied sanction" doctrine that was disapproved by the Privy Council in that case. Whether that is so or not, however, the decision has been treated in this country as authority for the proposition that a person who is out of time for filing a notice of appeal is subject to an implied sanction and that an application for an extension of time is to be regarded as analogous to an application under CPR 3.9 for relief from a sanction.
  36. The understanding that an application for an extension of time should be treated as an application for relief from a sanction gained some support from the decision of this court in Robert v Momentum Services Ltd [2003] EWCA Civ 299, [2003] 1 WLR 1577. The case concerned an application for an extension of time for service of particulars of claim. In that case the application was made before time for service had expired. The court pointed out that there was a difference between an application made before time had expired and one made after time had expired. The former could not be regarded as an application for relief from a sanction and there was no reason in those circumstances to import into rule 3.1(2)(a) the checklist in rule 3.9. Dyson L.J., with whom Hale L.J. and Sir Andrew Morritt V.-C. agreed, accepted that in Sayers v Clarke Walker the court had treated an application for an extension of time for filing a notice of appeal as an application for relief from a sanction, or at least closely analogous to such a case, because time for appealing had already expired when the application for an extension was made.
  37. Later cases have taken a similar view of the decision in Sayers v Clarke Walker. In YD (Turkey) v Secretary of State for the Home Department [2006] EWCA Civ 52, [2006] 1 W.L.R.1646 the applicant was seeking an extension of time of about 9 months. Brooke L.J. said in paragraph 35 that it was a case in which permission to appeal would have been granted if the application had been made in time, but since it had not, it was necessary to consider the application by reference to rule 3.9, applying Sayers v Clarke Walker. He took a similar approach in Jackson v Marina Homes Ltd [2007] EWCA Civ 1404: see paragraph 20. In Yeates v Aviva Insurance UK Ltd [2012] EWCA Civ 634 this court accepted without argument that on an application for an extension of time for filing a notice of appeal the court:
  38. "must not only take into account the overriding objective in CPR 1.1 of enabling the court to deal with cases justly but also the checklist of considerations listed in CPR3.9(1) as circumstances to be considered on an application for relief from sanctions."

    Moreover, in paragraph 25 Longmore L.J. said:

    "Sayers v Clarke Walker emphasised the new and stricter criteria which apply to extensions of time after the Bowman report on the practice of the Civil Division of the Court of Appeal and the new Civil Procedure Rules. Under the old practice the merits of the proposed appeal were, in practice, the most important consideration. Paragraph 54 of the Bowman report said that it was about time that rules about time limits were strictly complied with and that there should be a strong presumption that time limits should not be extended save in exceptional circumstances, regardless of the chances of success. That philosophy was endorsed by this court in Sayers. Brooke L.J. accepted that the sanction in relation to a failure to serve a notice of appeal in time (namely that no appeal will take place if an extension of time is not granted) was implied rather than express but said (para 21) that nevertheless the check-list in CPR Rule 3.9 should be followed. . . ."
  39. Sayers v Clarke Walker was cited to the court in Mitchell, but was not referred to in the judgment. However, the court did refer to Raayan Al Iraq Co. Ltd v Trans Victory Marine Inc [2013] EWHC 2696 (Comm), [2013] 6 Costs L.R. 911 in which the claimant applied for an extension of time of 2 days for service of its particulars of claim. The court accepted that in substance, the application was for relief from a sanction under CPR 3.9 itself (a description which appears to have been attached to it by the judge). The judge had granted the application, but it was suggested by this court that he might not have recognised the particular importance of the two elements of the overriding objective that are mentioned in the revised version of CPR 3.9. There is no suggestion that he had been wrong to regard the application as one for relief from a sanction, or at any rate sufficiently analogous to such an application to be determined by applying the same principles.
  40. Subsequent cases have followed a similar course. In Webb Resolutions Ltd v E-Surv Ltd [2014] EWHC 49, [2014] 1 Costs LR 182 Turner J. held, following Mitchell, that it was appropriate to apply the same approach to an application for an extension of time to seek an oral renewal of an application for permission to appeal, even though CPR 52.3(5) does not impose a sanction for failing to make an application within the prescribed time. In Associated Electrical Industries Ltd v Alstom UK [2014] EWHC 430 (Comm) a similar approach was taken to an application for an extension of time in which to serve particulars of claim made after the time for doing so had expired. In Baho v Meerza [2014] EWCA Civ 669, [2014] 4 Costs L.R. 620 this court held that the principles governing an application for an extension of time for filing a notice of appeal were those to be found in Mitchell. An extension of time of 7 days was refused.
  41. In Mid-East Sales Ltd v United Engineering and Trading Company (PVT) [2014] EWHC 1457 (Comm) Burton J. was faced with an application to set aside an order for service out of the jurisdiction made over 4 years after the proceedings had been served on the defendant. The judge referred to the decisions in Sayers v Clarke-Walker and Yeates v Aviva, which he clearly regarded as good law, subject only to the decision in Matthews, by which he was clearly troubled. He was somewhat dismissive of the latter decision, but he distinguished it on the grounds that in the case before him an express sanction had been imposed in the form of a default judgment.
  42. Finally, it is necessary to mention briefly the recent decision of this court in Altomart Ltd v Salford Estates (No. 2) Ltd. The case concerned an application for an extension of time of 36 days in which to file a respondent's notice. The applicant sought to persuade the court that the application was not one for relief from a sanction and was not sufficiently analogous to such an application to attract the principles which would apply to such an application. Not surprisingly, counsel for the applicant in that case, Mr. Peter Knox Q.C., placed a good deal of reliance on Matthews in support of that submission. However, having considered the line of authority beginning with Sayers v Clarke Walker and ending with Mid-East Sales, I expressed the view (with which Ryder L.J. and David Richards J. agreed) that it was now established that an application for permission to appeal out of time is analogous to an application under rule 3.9 and is therefore to be decided in accordance with the same principles.
  43. Mr. Knafler sought to persuade us that the view which the court took of the authorities in Altomart v Salford Estates was wrong. He submitted that Sayers v Clarke Walker had been misunderstood and misapplied, that the dicta in the cases to which I have referred were not binding and that Baho v Meerza was decided per incuriam, because the court in that case had overlooked the sentence in parentheses at the end of rule 52.6. Accordingly, he submitted, we were free to hold that applications for extensions of time to file a notice of appeal should not be approached in the same way as applications for relief from sanctions.
  44. I confess to finding that submission attractive, but having re-examined the authorities I am not persuaded that that course is open to us. As the authorities demonstrate, for the past twelve years it has been consistently understood that in Sayers v Clarke Walker this court deliberately equated applications for extensions of time for filing a notice of appeal with applications for relief from sanctions because in its view the implied sanction of the loss of the right to pursue an appeal meant that the two were analogous. Following the decision in Mitchell the courts have continued to proceed on the basis that applications for extensions of time for filing a notice of appeal should be approached in the same way as applications for relief from sanctions under CPR 3.9 and should attract the same rigorous approach. It might even be said that the decision in Mitchell has provided an independent basis for a similar approach to applications of that kind. The clearest example is perhaps to be found in Baho v Meerza, to which I have already referred. Whatever one may think of the doctrine of implied sanctions, therefore, particularly in the light of the views expressed by the Privy Council in Matthews, I think that the approach to be taken to applications of the kind now under consideration is now too well established to be overturned. It follows that in my view the principles to be derived from Mitchell and Denton do apply to these applications.
  45. The Mitchell principles
  46. In paragraphs 40-41 of its judgment in Mitchell the court provided guidance on the approach to be adopted to applications for relief from sanctions. The most relevant parts of that guidance to be found in those and certain other paragraphs of the judgment can be summarised for present purposes as follows:
  47. (i) if the failure to comply with the relevant rule, practice direction or court order can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly;

    (ii) if the failure is not trivial, the burden is on the defaulting party to persuade the court to grant relief;

    (iii) the court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted, but merely overlooking the deadline is unlikely to constitute a good reason;

    (iv) it is necessary to consider all the circumstances of the case before reaching a decision, but particular weight is to be given to the factors specifically mentioned in rule 3.9.

  48. In Denton the court affirmed the guidance given in paragraphs 40-41 of Mitchell, but explained the approach in more detail as follows:
  49. "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 is this more detailed guidance to which judges should now look when considering applications under CPR 3.9 and applications for extensions of time for filing a notice of appeal made after the time for doing so has expired.

    Questions of general relevance
  50. In the context of the principles to be derived from Denton it is convenient to deal with some questions of more general application that arose in the course of argument.
  51. (a) Public law cases
  52. The first concerns the significance, if any, of the fact that an appeal raises questions of public law rather than merely private rights. Mr. Knafler submitted that when dealing with an application for an extension of time to appeal in public law cases generally the court should adopt a more lenient approach because the appeal would almost invariably raise issues which it is in the public interest for the court to consider. He also submitted that the court should recognise the fact that public authorities find it difficult to provide instructions to their lawyers quickly enough to enable them to meet the deadlines imposed by the rules.
  53. Although many public law cases raise matters of great public interest, that is not invariably the case and indeed many private law cases raise questions of great significance to the public as a whole. Quite rightly, in my view, the Rule Committee has not made special provision for appeals from the Administrative Court to the Court of Appeal and it would be quite wrong for us to construct a special regime for such appeals outside the rules. Insofar as there is a suggestion to the contrary in R (Mohammadi) v Secretary of State for the Home Department [2014] EWHC 2251 (Admin) I respectfully disagree with it. Nonetheless, I would accept that the importance of the issues to the public at large is a factor that the court can properly take into account when it comes at stage three of the decision-making process to evaluate all the circumstances of the case.
  54. For similar reasons I am unable to accept that the court can construct a special rule for public authorities. I am well aware that the resources of many public authorities are stretched to breaking point, but in my view they have a responsibility to adhere to the rules just as much as any other litigants. In Mitchell the court stated clearly that, in the case of a solicitor, having too much work will rarely be a good reason for failing to comply with the rules and in my 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] EWCA Civ 198, [2007] 1 WLR 2278, there are certain kinds of public law proceedings, for example, appeals concerning claims for asylum and humanitarian protection, in which particular care needs to be taken to ensure that appeals are 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, are in my view factors which it may be appropriate to take into account at the third stage of the process. In this way the principles identified in paragraph 23 of the judgment of Buxton L.J. in BD (Iran) can be applied as appropriate in the context of considering the overall circumstances of the case. Finally, it cannot be emphasised too strongly that the principle of reasonable co-operation, which Mr. Knafler relied on as an essential aspect of proceedings in the Administrative Court, is of general application. The more robust approach to compliance with the requirements of the rules typified by Mitchell should not be taken as encouragement to refuse reasonable extensions of time or to seek tactical advantage in every minor default. The court has 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.
  55. (b) Shortage of funds
  56. Mr. Benisi sought to explain part of the delay that had occurred in his case by asserting that he did not have sufficient funds at his disposal to enable him to instruct solicitors to file a notice of appeal at the right time. In my view shortage of funds does not provide a good reason for delay. I can well understand that litigants would prefer to be legally represented and that some may be deterred by the prospect of having to act on their own behalf. Nonetheless, in the modern world the inability to pay for legal representation cannot be regarded as providing a good reason for delay. Unfortunately, many litigants are now forced to act on their own behalf and the rules apply to them as well.
  57. (c) Litigants in person
  58. At the time when the decisions which they now seek to challenge were made Mr. Benisi and Mr. Robinson were both acting in person. It is therefore convenient to consider whether the court should adopt a different approach in relation to litigants in person. The fact that a party is unrepresented is of no significance at the first stage of the enquiry when the court is assessing the seriousness and significance of the failure to comply with the rules. The more important question is whether it amounts to a good reason for the failure that has occurred. Whether there is a good reason for the failure will depend on the particular circumstances of the case, but I do not think that the court can or should accept that the mere fact of being unrepresented provides a good reason for not adhering to the rules. That was the view expressed by the majority in Denton at paragraph 40 and, with respect, I entirely agree with it. Litigation is inevitably a complex process and it is understandable that those who have no previous experience of it should have difficulty in finding and understanding the rules by which it is governed. The problems facing ordinary litigants are substantial and have been exacerbated by reductions in legal aid. Nonetheless, if proceedings are not to become a free-for-all, the court must insist on litigants of all kinds following the rules. In my view, therefore, being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the rules.
  59. The Civil Procedure Rules are available free on line on the web site of the Ministry of Justice and to that extent are widely available. What the ordinary person requires, however, is more help in discovering and understanding the rules and some basic guidance about the way in which proceedings should be conducted. If, as seems inevitable, the courts can expect to see an increasing number of litigants in person, assistance of that kind will become essential if the administration of justice is not to be undermined.
  60. (d) The merits
  61. If applications for extensions of time are allowed to develop into disputes about the merits of the substantive appeal, they will occupy a great deal of time and lead to the parties' incurring substantial costs. In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have 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 is appropriate in order to discourage those who would otherwise seek to impress the court with the strength of their cases.
  62. Support for that conclusion can be found in the recent decision of the Supreme Court in HRH Prince Abdulaziz Bin Mishal Bin Abdulaziz Al Saud v Apex Global Management Ltd [2014] UKSC 64, in which the court had to consider the extent to which the merits of a claim or defence were relevant to granting relief from the sanction of striking out in default of compliance with an "unless" order. Lord Neuberger, with whom Lord Sumption, Lord Hughes and Lord Hodge agreed, held that, even in a case of striking out, the merits of the claim or defence were relevant only when they were so strong that there was no real answer to them, in other words, in cases where an application for summary judgment could be expected to succeed. In Lord Neuberger's view (paragraph 30):
  63. " . . . 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."
  64. In my view exactly the same considerations apply to applications for extensions of time for permission to appeal.
  65. The present appeals
  66. I can now turn to consider how the principles to which I have referred apply to the present appeals.
  67. (a) R (Dinjan Hysaj) v SSHD
  68. This appeal is unusual in as much as permission to appeal has already been granted by the trial judge. It clearly raises a point of general importance on which many other cases turn. The delay in filing a notice of appeal was substantial, but almost all of it occurred while the parties were awaiting a decision on the appellant's application for permission to appeal. Until a decision on that question had been given no further progress could in practice be made.
  69. The first question for consideration is whether the delay was serious and significant. It was certainly serious in terms of its length, but I do not think that was significant in the sense of having an effect on the proceedings. Apart from the period between 2nd May 2014 (when the judge determined the application for permission to appeal in the appellant's favour) and 27th May 2014 (when the notice of appeal was filed) the proceedings were effectively at a standstill. Part of that delay was caused by the failure of the Secretary of State to file submissions in response to the application. It was then necessary for the appellant to obtain an extension to his public funding certificate, but that took only three days. There was delay between 2nd and 19th May 2014 and between 22nd and 27th May which could have been avoided, but there is no reason to think that it significantly affected the progress of the appeal in the longer term and the respondent was well aware that the judge's decision would be challenged. I do not think that the delay in this rather unusual case was significant and since there are no other factors militating against the grant of relief, I would allow the application and extend time on this ground alone. However, it may be of assistance to consider how the matter stands in relation to the other two stages of the enquiry.
  70. The notice of appeal was filed out of time because the parties did not realise that the order adjourning the application for permission to appeal for consideration on the papers did not have the effect of extending time. CPR 52.4(2) makes it clear that the 21 days allowed for filing a notice of appeal runs from the date of the decision under appeal, not from the date on which the application to the court below for permission to appeal is determined. I do not think that rule 52.4(2) is a trap for the unwary and the parties' solicitors should have had it in mind (though the Rule Committee might wish to consider whether, as a matter of practical convenience, the adjournment of an application to the lower court for permission to appeal should automatically extend the time for filing a notice of appeal). They may have thought that it was implicit in their agreement to the consent order described at paragraph 4 above that they had agreed to extend the time within which notice of appeal had to be filed, but rule 52.6(2) precluded any such agreement. They could have asked the judge to extend time under rule 52.4(2)(a) pending determination of the application for permission to appeal. Ignorance of the rules will rarely, if ever, provide a good reason for failing to comply with them, especially where professionals are involved. I do not think that there was a good reason for the delay.
  71. The final stage of the process is to consider all the circumstances of the case. As I have already mentioned, this appeal raises a point of considerable importance both to the parties and those in similar positions and to the wider public and it is one which in the public interest needs to be decided as soon as reasonably possible. That is a factor that argues in favour of granting relief, but I do not think that the merits themselves are sufficiently clear in this case for the court to take them into account one way or the other. Of critical importance, in my view, is the fact that the delay in filing a notice of appeal has not prejudiced the respondent, who clearly understood that the effect of the agreed order was to stop time running. In all the circumstances I have no doubt that an extension of time should be granted.
  72. (b) Fathollahipour v Aliabadibenisi
  73. The delay in this case, some 9 months, is much longer than that in the previous case and in general the longer the delay the less willing the court will be to extend time. Of course, the applicant may in some cases be able to satisfy the court that the delay, although substantial, has not had any practical effect on the course of the proceedings, but the longer the delay, the less likely it is that he will be able to do so. The appeal in this case relates only to the costs of the applications on 4th, 12th and 30th July 2013, but even so, there is no reason to doubt that the delay has had a commensurate effect on the progress of the appeal. One reason for limiting the time for filing a notice of appeal is to promote finality in litigation. Parties need to know where they stand. Delay of the kind that occurred in this case undermines that objective. In my view it was both serious and significant.
  74. It thus becomes necessary to enquire into the reasons for the delay. Apart from the application to set aside the default costs certificate and the application to vary the freezing injunction, Mr. Benisi represented himself in the proceedings because, he said, he did not have the means to obtain legal representation. That may be so, but the nature and variety of the proceedings which Mr. Benisi conducted on his own behalf before he did eventually obtain legal representation suggest that he was not someone who was unable to understand how to manage legal proceedings. They also suggest strongly that Mr. Benisi decided where to direct his energies and such funds as he was able to obtain from his friends. Having to deal with concurrent proceedings in Switzerland and England no doubt made things difficult for him, but even if one accepts his own account of events, the picture that emerges is of a man who decided where best to concentrate the resources available to him. All that makes Mr. Benisi's assertion that he did not know he had a right of appeal inherently implausible, but the argument loses any force it might have had once one appreciates that Mr. Benisi asked for, and received, an assurance from the judge that he had a right of appeal. Moreover, having asked for, and been refused, permission to appeal, the judge told him in terms that he would have to make an application to the Court of Appeal. It is true that the order when drawn did not comply with the requirements of 40.2(4)(d), in that it did not identify the court to which any further application for permission was to be made, but in the circumstances I do not think that is of any significance.
  75. At all events, Mr. Benisi was able to obtain solicitors to act for him in February 2014, but even then no urgent steps were taken to file a notice of appeal against Jay J.'s order. Instead, an unsuccessful application was made to vary the freezing order and a further four months went by. In this case I do not think that there was a good reason for failing to file a notice of appeal in time.
  76. Nonetheless, it is necessary to consider all the circumstances of the case before reaching a final decision. In the light of the delay that has already occurred and the various efforts that have been made by Mr. Benisi to avoid complying with the judge's order, I consider that the respondent would suffer prejudice if the court were to grant an extension of time to enable him to appeal against that order. Of course, Mr. Benisi will suffer some prejudice if he is prevented from pursuing his appeal, but that is of his own making. Mr. Chirnside submitted that Mr. Benisi has a strong case for overturning the judge's order, because it was wrong for the judge to make a final order for costs pending the outcome of the Swiss proceedings, to which the freezing order was merely ancillary and because the judge had failed to give reasons for his decision. In support of that submission he relied on Desquenne et Giral UK Ltd v Richardson [2001] F.S.R. 1, in which the court held that, having granted an injunction to maintain the status quo pending the determination of the proceedings, the judge below should have reserved the costs of the interim proceedings.
  77. For the reasons given earlier I do not think that the court should generally have regard to the merits of the appeal, save in cases where they are reasonably clear one way or the other. I do not think this is one of those cases. In some cases, of which Desquenne et Giral UK Ltd v Richardson is an example, it may be appropriate to defer making an order for costs until the outcome of the substantive proceedings is known, but that will not invariably be the best course. Although in one sense the freezing order can be said to stand or fall with the Swiss proceedings, the proceedings here were essentially self-contained and turned on the question whether in the light of the Swiss proceedings it was appropriate to prevent the dissipation of assets held in this country. The judge had a wide discretion in the matter of costs and I do not think that at the end of the hearing Mr. Benisi can have been in much doubt that the costs were awarded against him as the unsuccessful party. He had failed in his attempt to have the freezing order set aside and the difficulties that might have been caused by adjourning the respondent's application for costs are obvious. In my view this is not a case in which the merits of the appeal, insofar as they can be gleaned at this stage, weigh heavily in the balance in favour of extending time.
  78. Viewed overall, I am not persuaded that it would be right to extend time in this case. The length of the delay and the circumstances in which it occurred seem to me to point firmly towards refusing to extend time. Nothing in the circumstances as a whole point strongly in favour of doing so. In those circumstances an extension of time must be refused. It is unnecessary, therefore, to consider the merits of the application for permission to appeal or the application for a stay of execution.
  79. (c) May v Robinson
  80. The delay in this case is even longer and the extenuating circumstances even weaker. Mr. Robinson was represented by solicitors in connection with the proceedings against him, including his application for costs. When the judge made his order for costs in October 2008 Mr. Robinson must have become aware of it and it must have come as something as a surprise. He had been hoping to recover the whole of his costs, but had been awarded only a small part of them. However, he took no steps to do anything about it at the time, nor did he do so six months later when the judge reaffirmed his order and explained why he had made it.
  81. Mr. Robinson is seeking permission to appeal because he considers it important to establish that someone like himself, who is the nearest relative of a person liable to be detained under the Mental Health Act, could properly resist an application to remove him from that position and, if successful, recover his costs of doing so. I have much sympathy for his position, but I am unable to accept that this is a case in which it would be appropriate to extend time. The delay is very serious and also very significant in the sense that the position in relation to costs has remained undisturbed for a long time. There would have to be exceptional reasons for allowing Mr. Robinson to re-open the position now and there are none. I would therefore refuse the extension of time he seeks. However, although Mr. Robinson will not be able to pursue his appeal, he can take some comfort from knowing that by the very fact of making an award of costs in his favour the court recognised that he was the successful party and entitled in principle to recover costs.
  82. For these reasons I would grant the extension of time sought by Mr. Hysaj, but would refuse those sought by Mr. Benisi and Mr. Robinson.
  83. Lord Justice Tomlinson :

  84. I agree.
  85. Lady Justice King :

  86. I also agree.


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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1633.html