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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Aken v London Borough Of Camden [2002] EWCA Civ 1724 (11 October 2002)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1724.html
Cite as: [2003] 1 All ER 552, [2003] 1 WLR 684, [2002] EWCA Civ 1724

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Neutral Citation Number: [2002] EWCA Civ 1724
B2/2002/0892

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Cowell)

Royal Courts of Justice
Strand
London WC2
Friday 11 October 2002

B e f o r e :

LORD JUSTICE WARD
LORD JUSTICE MUMMERY
and
LORD JUSTICE JONATHAN PARKER

____________________

DEBORAH VAN AKEN Appellant
-v-
THE LONDON BOROUGH OF CAMDEN Respondent

____________________

Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

Mr Jan Luba QC and Mr Rajeev Thacker (instructed by Messrs Johns & Saggar, London NW5) appeared on behalf of the Appellant.
Mr Ranjit Bhose (instructed by Legal Services, London Borough of Camden) appeared on behalf of the Respondent.

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE WARD:I will ask Lord Justice Jonathan Parker to give the first judgment.

    LORD JUSTICE JONATHAN PARKER:

  1. This appeal raises an issue of some general importance as to the application of the statutory time limit for appeals under section 204 of the Housing Act 1996 ("the 1996 Act"). The appeal is brought by Ms Deborah Van Aken, with permission granted by Lord Justice Rix on the papers on 19 June 2002, against an order made by His Honour Judge Cowell in the Central London County Court on 12 April 2002 dismissing her appeal under section 204 on the ground that the court had no jurisdiction to entertain it. The judge concluded that her appellant's notice had been filed after the expiry of the time limit prescribed by section 204(2), and that the court had no power to extend time.
  2. The facts are not in dispute. In summary, they are as follows. On 7 November 2000 the appellant applied to the respondent, the London Borough of Camden, for housing as a homeless person. Camden made two offers of accommodation, which the appellant rejected for reasons which Camden accepted. In June 2001 Camden made her a third offer of accommodation, which she once again rejected, using Camden's standard appeal form. Camden rejected her appeal, asserting that the accommodation offered was suitable for her. It gave her until 9 July 2001 to accept the offer. The appellant persisted in her rejection of the offer, contending that the accommodation was unsuitable. Camden allowed her a further two days in which to accept, but she did not do so. On 17 July 2001 Camden notified her that it had discharged its statutory duty towards her. The appellant then requested a review of Camden's decision pursuant to section 202(1)(f) of the 1996 Act. The decision on the review was dated 22 November 2001. By its decision Camden upheld its earlier decision that the accommodation offered was suitable. The decision on the review was notified to the appellant's solicitors on 26 November 2001.
  3. Section 204(1) of the 1996 Act provides that if an applicant who has requested a review under section 202 is dissatisfied with the decision on the review "he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision". Section 204(2) provides as follows (so far as material):
  4. "An appeal must be brought within 21 days of his being notified of the decision ..."
  5. It is common ground that in the instant case the last of the 21 days allowed by the subsection was Monday 17 December 2001. The judge made the following findings as to what happened on that day (in paragraph 5 of his judgment):
  6. "On that day, the appellant's solicitors prepared three sets of appropriate papers, and a member of the solicitors' staff left the office at 3.30 and arrived at the court offices at 4.15 after they were closed to the public, and so her papers were not received. At 17.56, the solicitors sent by facsimile the appropriate copies of the appropriate documents and for full measure posted through the letter box of the court at 6.30pm another full copy of all the appropriate documents."
  7. The judge went on to record that next morning, that is to say, on Tuesday 18 December 2001, the appellant's notice was, as he put it, "processed in the ordinary way", and was dated with that day's date.
  8. In these circumstances Camden contended, as a preliminary point, that the court had no jurisdiction to hear the appeal since, firstly, the appellant's notice was one day out of time and, secondly, there was no power in the court to extend time.
  9. It is convenient at this point to refer to those provisions of the Civil Procedure Rules ("the CPR") and of the Practice Directions which supplement them which are relevant to the issues on this appeal. I will refer to the Rules using the prefix CPR followed by the number of the relevant rule and to the Practice Directions by the initials PD preceded by the number of the relevant rule. Thus "CPR 52" is a reference to rule 52 and "52PD" is a reference to the practice direction supplementing that rule.
  10. I start with CPR 52, section 1 of which (comprising CPR 52.1 to 52.12 inclusive) contains general rules about appeals. CPR 52.1(1)(c) provides that CPR 52 applies to appeals to a county court. CPR 52.1(3)(d) defines "appellant" as meaning "a person who brings or seeks to bring an appeal". CPR 52.1(4) provides that CPR 52 is subject to any enactment which sets out special provisions with regard to any particular category of appeal. Thus (and this is common ground) CPR 52 takes effect subject to the 21-day time limit prescribed by section 204(2) of the 1996 Act. CPR 52.2 provides that all parties to an appeal must comply with the relevant practice direction. CPR 52.4(2) provides that an appellant must "file" his appellant's notice at the appeal court within 14 days after the date of the lower court's decision unless the lower court otherwise directs. In relation to this appeal, however, the statutory time limit of 21 days after notification must be substituted.
  11. At this point it is necessary to refer to the definition of "filing" in CPR 2.3(1). That sub-rule provides as follows:
  12. "`filing', in relation to a document, means delivering it, by post or otherwise, to the court office; ..."

    While looking at CPR 2, I should also refer to CPR 2.8(5), which reads as follows:

    "When the period specified -
    (a) by these Rules or a practice direction; or
    (b) by any judgment or court order,
    for doing any act at the court office ends on a day on which the office is closed, that act shall be in time if done on the next day on which the court office is open."
  13. I return to CPR 52. CPR 52.6 gives the appeal court a general power to extend time for filing an appeal notice (that is to say an appellant's notice or a respondent's notice).
  14. I turn next to 52PD, section II of which contains general provisions about statutory appeals. Subparagraph 17.1 of 52PD provides (so far as material) that paragraph 17 applies to statutory appeals, that is to say to appeals to the court under any enactment. Hence paragraph 17 applies in the instant case. Subparagraph 17.1(2) provides that the paragraph is subject to any provision relating to a specific category of appeal. Subparagraph 17.2 provides that CPR 52 applies to statutory appeals with the amendments which follow. Subparagraph 17.3 provides that the appellant must "file" his appellant's notice at the appeal court within 28 days after the date of the decision of the lower court: once again, the statutory time limit of 21 days after notification must be substituted in the instant case.
  15. Next, I refer to 2PD, which relates to court offices. Subparagraph 3.1 provides that every county court shall have an office. Subparagraph 3.2(1) provides that the office shall be open throughout the year except on weekends and national holidays and on such other days as the Lord Chancellor may direct. Subparagraph 3.3 provides (so far as material) that on days on which it is open the office shall be "open to the public ... from 10am to 4pm".
  16. Next, I refer to CPR 3.10, which provides (so far as material) that where there has been "an error of procedure such as a failure to comply with a rule or practice direction" the court may remedy the error.
  17. Next, I refer to CPR 5, which deals with court documents. CPR 5.1 provides as follows:
  18. "This Part contains general provisions about -
    (a) documents used in court proceedings; and
    (b) the obligations of a court officer in relation to those documents."
  19. Lastly, I refer to 5PD. CPR 5 contains general provisions about documents used in court proceedings. Subparagraphs 5.1 and 5.5 of 5PD deal with documents for filing at court. Subparagraph 5.1 provides that the date on which a document was filed at court must be recorded on the document. Subparagraph 5.2 of 5PD is in the following terms:
  20. "Particulars of the date of delivery at a court office of any document for filing and the title of the proceedings in which the document is filed shall be entered in court records, on the court file or on a computer kept in the court office for the purpose. Except where a document has been delivered at the court office through the post, the time of delivery should also be recorded."
  21. Subparagraph 5.3 of 5PD deals with filing by fax. Subparagraph 5.3(1) and (2) provide that a document may be filed by fax without the need to send the original. Subparagraph 5.3(3) is in the following terms:
  22. "A party filing a document by fax should be aware that the document is not filed at court until it is delivered by the court's fax machine, whatever time it is shown to have been transmitted from the party's machine."
  23. Subparagraph 5.3(6) provides that:
  24. "If a fax is delivered after 4pm it will be treated as filed on the next day the court office is open."
  25. The judge upheld Camden's contentions on the preliminary issue as to jurisdiction. As to Camden's first contention, viz that the appellant's notice was "filed" after the expiry of the prescribed 21-day period, the judge said this (in paragraph 16 of his judgment):
  26. "In my judgment, the word `deliver' or `delivering' to the court office in CPR 2.3 must mean, when it comes to determining the day of delivery, the day on which the matter falls to be dealt with, so that any document that is delivered after 4 o'clock in the afternoon when the county court office is closed, must be treated as having been delivered on the following day. Otherwise there might be very odd disputes of fact as to whether something sent by fax was sent by fax before midnight or just after midnight and it seems to me that nothing should turn upon a distinction like that. I do have at the back of my mind various rules - the details of which I cannot at present identify - of offices such as the Land Registry where documents have to be delivered by a certain time of day if they are to be treated as having been delivered on that day. So it does seem to me that on the true construction of all those provisions that I have referred to this document was not delivered on Monday the 17th."
  27. The judge went on (in paragraph 18 of his judgment) to say this:
  28. "In answer to the first question: when was the appeal brought? It seems to me on the true construction of all those rules that it was brought on 18th December which was the appropriate day for the court staff to deal with the matter. When any action is initiated the date, in many cases being an important date, is determined by looking to see when the action or proceeding or appeal, or whatever it is, was authenticated by the court, by the court's stamp or seal, or whatever it is, being put upon it. So that deals with the first question: when was the appeal brought? It was brought on Tuesday the 18th. The dating on the 18th cannot be faulted because that was, upon the facts, the appropriate date."
  29. As to Camden's second contention, viz that there is no power in the court to extend the time for appealing in the instant case, the judge began by noting that (as is the fact) whereas under section 202(3) there is power for the housing authority to extend the time within which a request for a review must be made, there is no equivalent provision in section 204. The judge considered this to be a very good point. Next, he noted that under the Homelessness Act (which came into force on 30 September 2002, that is to say after the judge delivered his judgment) a new subsection (2A) has been inserted in section 204 expressly enabling the court to extend time if (but only if) it is satisfied that there is a good reason for doing so. This suggested to the judge that under the section as it stands there is no power to extend time. The judge continued (in paragraph 20 of his judgment):
  30. "The second principal reason for saying that there is no power to extend time is that the whole context of the Act is one of speed and dispatch. Local authorities have to deal with a large number of unfortunately homeless people. They have to be categorised in various ways so that they join different queues, and they are treated in different ways according, broadly, to their needs. Effectively, what an appellant is doing is contesting a decision made and sometimes seeking to be put into a different category or queue, and it is vital in the interests of all that matters are disposed of reasonably rapidly so that local authorities know where they are in relation not only to the particular appellant, but in relation to the general body of homeless people. It is not, therefore, difficult to see why, if an appellant is to take the matter beyond what is to some extent somewhat akin to an appeal within the local authority, speed is of the essence."
  31. The judge went on to describe as "compelling" the submission on behalf of the Council that 52PD paragraph 17.1(2) has the effect of excluding the general power contained in CPR 52.6 for an appeal court to extend time for the filing of an appeal notice.
  32. Referring to the decision of this court in R v Immigration Appeal Tribunal (ex parte Jeyeanthan) [2001] 1 WLR 354, where the issue was as to the effect of a procedural defect in that the Secretary of State had used the wrong form in applying for leave to appeal from the decision of an adjudicator in an asylum case, the judge effectively distinguished procedural defects from questions of jurisdiction. He continued (in paragraph 25 of his judgment):
  33. "This goes directly to the jurisdiction of the court. If the appeal is not brought in time then that is because it is of the essence of the entire appeal process in this part of the Housing Act that matters are dealt with speedily."
  34. The judge went on to reject arguments advanced by the appellant based on the Human Rights Act 1998 and Article 6 of the European Convention on Human Rights. Those arguments have not been advanced in this court.
  35. The judge accordingly dismissed the appeal.
  36. In this court, Mr Jan Luba QC, leading Mr Rajeev Thacker, for the appellant, submits as follows.
  37. On the first issue, he submits that an appeal is "brought", within the meaning of section 204(2), when the appeal notice is "filed", that is to say, when it is delivered to the court office. There is at least common ground between him and Mr Ranjit Bhose, who appears for Camden, that one has to look to the Civil Procedure Rules to see what they provide in relation to the filing of court documents.
  38. However, Mr Luba and Mr Bhose part company when Mr Luba goes on to submit that the appellant's notice in the instant case was delivered to the court office, within the meaning of CPR 2.3(1), when a representative of the appellant's solicitors posted it through the letter box of the county court at 6.30pm on Monday 17 December 2001 (that is to say, within the 21-day period prescribed by section 204(2)), and hence that it was "filed" at that moment for the purposes of CPR 52.4(2) and 52PD 17.3.
  39. Mr Luba submits that mere delivery is a unilateral act in the sense that it involves only one party, in contrast (for example) to delivery "to the proper officer for entry by him in records of the court" - that being the requirement of the then County Court Rules which the Court of Appeal had to consider in Aadan v Brent London Borough Council (2000) 32 HLR 848. In that case (as in the instant case) documents were delivered to the court office on the last day of the relevant period, at a time when the office was closed. The Court of Appeal held that the requirement could not be met by delivery to the court office at a time when the office was closed, and hence that (following Pritam Kaur v S Russell & Sons Ltd [1973] 1 QB 336) time was to be treated as extended to the next day on which the court office was open. Chadwick LJ said (at p.854):
  40. "The effect of [the relevant rule] is that posting a document to the court office does not amount to `the filing of a document by delivery to the proper officer', unless the document is actually received. ... A document is not delivered to an individual unless the individual is there to receive it." (Emphasis supplied)

    Later on the same page, Chadwick LJ said:

    "I find in the words of that rule a sufficient basis for holding that the filing of a document in the county court can only be done when the county court office is open." (Emphasis supplied)
  41. Aadan is, however, to be contrasted with the decision of the Court of Appeal in Swainston v Hetton Victory Club Ltd [1983] 1 All ER 1179, where the act which had to be done within the prescribed time was the presentation of a complaint to an industrial tribunal. Waller LJ concluded that presentation of a complaint did not depend on activity on the part of the other party, and that there was accordingly no basis for applying Pritam Kaur. At p.1184C he said this:
  42. "Delivery of a document to the proper quarter does not require action on the part of anybody at that proper quarter."
  43. Mr Luba submits that that observation applies equally in the instant case. He submits that there is no requirement in the instant case, as there was in Aadan, for delivery to an individual. CPR 2.3(1) refers merely to delivery, "by post or otherwise, to the court office". Mr Luba submits (relying once again on Swainston) that no relevant distinction is to be drawn between a court office and the court building, and that delivery in the letter box after the office has closed is effective delivery for the purposes of CPR 2.3(1). I will return to Swainston later in this judgment.
  44. In the alternative, Mr Luba submits that the faxing of the appeal notice was effective delivery to the court office at the point in time when the fax was received on the office fax machine. He submits that 5PD was made without authority, since there is no reference to the practice direction in the rule itself. He has referred us to SI 2002/2058, which will come into force on 2 December 2002, and which inserts into the rule an express provision for the making of a practice direction in relation to the use of the fax machine for the delivery of documents. Accordingly, he submits that the provision in 5PD 5.3(6) that a fax "delivered" after 4pm is to be treated as filed on the next day the court office is open is ultra vires and of no effect.
  45. Finally, should his earlier submissions on this first issue be rejected, he submits that the appellant's failure to file her appellant's notice within the prescribed period is an "error of procedure" within the meaning of CPR 3.10, which the court can and should correct.
  46. On the second issue (power to extend time), Mr Luba submits firstly that the court's power to extend time is not excluded by section 204(2), on the footing that an express exclusion of that power would have been required. Secondly, he submits that the subsection is concerned not with jurisdiction but with procedure, pointing out that the statute does not specify any sanction for non-performance. He accordingly submits that the principles stated by Lord Woolf MR in Jeyeanthan apply, and that the relevant issue is whether there has been "substantial compliance" with the statute. He submits that on the facts of the instant case that question must be answered in the affirmative. There was, he submits, if his earlier submission be rejected, an irregularity in the proceedings in the county court which can and should be remedied under CPR 3.10, in that the time limit which is to be applied is the time limit prescribed by the rules subject only to such alterations as are required by virtue of the terms of the statute.
  47. Mr Luba acknowledges that it was established in a number of cases that under the former rules of procedure in the county court there was no jurisdiction to extend a time limit prescribed by statute, and that this applied equally to the Housing Acts (see, for example, Begum v Tower Hamlets London Borough Council [2000] 1 WLR 306). However, he submits that under the CPR the power to extend time conferred by CPR 52.6 is nevertheless applicable, not having been ousted by any express statutory prohibition.
  48. In his oral submissions on behalf of Camden, Mr Bhose, on the first of the two issues, makes six submissions. Firstly, he accepts that the bringing of a statutory appeal under section 204 is governed by the mechanics of filing an appellant's notice under the CPR. As I indicated earlier, so much is common ground. Secondly - and this is controversial - Mr Bhose submits that the mechanism for filing an appellant's notice is not unilateral but transactional in the sense that it requires some element of activity on the part of the receiving party. Thirdly, he submits that to treat the requirements of filing as transactional would promote certainty and good practice. Fourthly, he submits that on the facts of the instant case (and, indeed, this would follow if his submissions are correct) no appeal notice came into the hands of the court office staff until Tuesday 18 December 2001, that is to say, outside the statutory period. Fifthly, he submits that if, contrary to his earlier submissions, the right approach is to treat the mechanism for filing an appellant's notice as being unilateral in the sense explained earlier, neither of the two attempted methods of delivery were in fact sufficient. Sixthly, he submits that there is no provision in the CPR to enable the court to allow the appeal to go forward if indeed there was no compliance with the statutory time limit.
  49. He prefaced his more detailed submissions with four points as to the approach to construction of the CPR. Firstly, he warned us against too rigid an adherence to principles laid down in authorities decided under the former rules of procedure. Secondly, he submitted that the CPR are to be interpreted in a practical way, looking at them as a whole and in accordance with the overriding objective. Thirdly, he stressed the need for administrative certainty and submitted that any construction should, where it can legitimately do so, promote rather than undermine certainty. Fourthly, he accepted, as has been judicially stated, that the practice directions are a weak aid to the construction of the rules, but he submitted that, if the rules give rise to two possible constructions, then in those circumstances the terms of the relevant practice directions can be a legitimate aid.
  50. Mr Bhose then turned to authority and cited to us the case of Aadan, also referred to by Mr Luba in the course of his argument. Mr Bhose invites us to conclude that the instant case is in all relevant respects on all fours with Aadan and that the conclusion of Chadwick LJ that the mechanics of presentation in that case were transactional rather than unilateral applies also to the instant case.
  51. Mr Bhose goes on to pray in aid the practical considerations which would arise if it were difficult or impossible for the court office staff to determine at what precise time a document had been delivered by hand by posting it through the letter box. He prays this point in aid in support of the transactional construction for which he contends. He also submits (although he accepts it was not perhaps the most attractive submission) that a distinction falls to be made between the court office itself and the court building, suggesting that merely posting the documents in the letter box to the building may not be sufficient to amount to delivery to the court office.
  52. As to the submissions of Mr Luba in relation to the transmission of the fax on the Monday afternoon, Mr Bhose accepts that there are difficulties arising in relation to the question whether or not 5PD is or is not ultra vires, but points to a number of other practice directions which are not expressly referred to in the rules which they purport to supplement. He submits that in any event there is no power in the court to rectify any error or failure in this case under CPR 3.10. He submits that there was here no error in the proceedings themselves: indeed, no proceedings were at any stage on foot because there was no jurisdiction for the court to entertain the appeal notice.
  53. Turning to the second issue, Mr Bhose submits that there is no power to extend time under section 204. He first of all contrasts section 204 with section 202, which, as I indicated earlier, contains a power for the housing authority to extend time. Secondly, on the second issue, Mr Bhose submits that the provision in section 204(2) is a jurisdictional and not merely a procedural requirement. Thirdly, he points to the fact that Parliament has found it necessary to enact the Homelessness Act 2002, inserting a new subsection (2A) into section 204 conferring the necessary power to extend time. Mr Bhose also submits that the case of Jeyeanthan is of no assistance to us in the instant case since it was concerned only with procedural irregularities.
  54. I can now state my own conclusions. I turn to the first issue. In my judgment, this is a Swainston case rather than an Aadan case, in that mere delivery of an appeal notice to the appropriate court office is sufficient to constitute the "filing" of the notice within the terms of the definition of that word in CPR 2.3(1), without any additional requirement that there should be someone at the court office to receive it, and/or to authenticate it.
  55. In Swainston, the applicable time limit for presentation of a complaint to an industrial tribunal expired at midnight on a Sunday. The tribunal's office was closed at weekends, but there was a letter box in the office's door to the street through which communications could be posted when the office was closed. The letter box was cleared every Monday morning when the office opened. The complainant did not present his complaint until the Monday morning. The employers contended that it was out of time. The tribunal held, applying Pritam Kaur, that since the office was closed on the Sunday the prescribed time limit was to be treated as not having expired until the next working day thereafter, with the consequence that the complaint had been presented in time. The Employment Appeal Tribunal allowed the employers' appeal, and its decision was upheld in the Court of appeal.
  56. Giving the judgment of the Employment Appeal Tribunal, the then President, Browne-Wilkinson J (as he then was), identified the issue for decision as being whether it was possible for the complainant to present his complaint, within the meaning of the relevant statute, on the Sunday. If it was, then Pritam Kaur would not apply. Concluding that it was possible for the complainant to do so, Browne-Wilkinson J said this (at p.1182c-f):
  57. "As it seems to us, presentation is primarily a unilateral act to be carried out by the person who is presenting. However, it does require some form of collaboration by the person to whom the presentation is being made: an act of presentation cannot be completed unless it is either actually received by the person to whom the presentation is made, or has been placed or communicated through a channel which the person to whom the presentation is to be made has indicated as an acceptable means of communication and receipt. Therefore, it is only possible to say that presentation of the complaint was impossible so as to introduce the Pritam Kaur exception if it can be said that on Sunday, 6 December, there was no channel for receiving the complaint on that date. As it seems to us, if business is being carried on in a building which, when closed, has a door to which the public have access and that door contains a letter box held out as a means of communication, a document put through that letter box is in any ordinary sense `presented' to the person carrying on that business when it is put through the letter box. We do not wish this case to turn on the exact details of the internal arrangements made in this particular regional office. As it seems to us, an application is presented if it is placed through a letter box or dealt with in some other way held out by the regional office as a means whereby it will receive communications."
  58. In the Court of Appeal, Waller LJ gave the leading judgment, with which Watkins and Fox LJJ agreed. In the course of his judgment, Waller LJ said (in a passage, part of which I quoted earlier when summarising Mr Luba's argument) at p.1184c-d:
  59. "In my opinion it is difficult to say that presentation requires any action on the part of the body to which presentation is made. Delivery of a document to the proper quarter does not require action on the part of anybody at that proper quarter. Donaldson P in the passage quoted contemplates subsequent registration, but that is not part of the presentation. In my judgment the line of authorities of which Pritam Kaur was an example depend on activity on the part of the other party, whereas presentation does not."
  60. In my judgment the instant case is stronger than Swainston, in that whilst (as Browne-Wilkinson J noted) the concept of presentation requires "some form of collaboration by the person to whom the presentation is being made", the concept of delivery to an office does not. If presentation to a court or tribunal is a unilateral act, in the sense in which Browne-Wilkinson J used that word, then in my judgment a fortiori delivery to an office is.
  61. In complete contrast, in my judgment, is Aadan. In Aadan there was a requirement for delivery to an individual. In the instant case the requirement is for delivery to a place.
  62. I accept that certain provisions of the practice directions appear to proceed on the footing that an appeal notice cannot be "filed" at a time when the court office is not open (see, for example, 5PD 5.2). However, even assuming for present purposes that 5PD is effective, it is to be remembered that the practice directions are themselves subordinate to the rules. Thus, paragraph 6 of Schedule 1 to the Civil Procedure Act 1997 provides that the rules may, "instead of providing for any matter", refer to provision made or to be made by directions (see also Godwin v Swindon Borough Council [2001] 4 All ER 641 at 645h per May LJ). In the instant case the meaning of the definition of "filing" in CPR 2.3(1) is, in my judgment, clear. In any event, I would consider that 5PD and 5.2 deal only with matters of internal management in the court office (see the reference to the obligations of the court officer in CPR 5.1(b)).
  63. Nor can I accept Mr Bhose's submission that there may be a distinction between the court office and the court building. As in Swainston, the letter box in the instant case was the designated means of communicating with the court office out of hours.
  64. On the first issue, therefore, I respectfully disagree with the judge's conclusion that the appellant's notice in the instant case was "filed" only when it was "authenticated by the court". In my judgment it was "filed" at 6.30pm on Monday 17 December 2001 when it was posted through the letter box of the county court. In fairness to the judge, it does appear from his judgment that Swainston was not cited to him.
  65. In the light of that conclusion, it is not necessary for me to decide whether there was also delivery by fax at the time when the fax was transmitted, and I express no view on that point.
  66. On the first issue, therefore, I would allow the appeal. That makes it unnecessary to address the second issue, as to the existence of a power in the court to extend time. Moreover, as already indicated, this is an issue which can no longer arise in relation to appeals under section 204, now that an express power to extend time has been included in the section. In the circumstances, I prefer to express no view on the second issue.
  67. In the result, therefore, I would allow this appeal.
  68. LORD JUSTICE MUMMERY:

  69. For the reasons given by my Lord, I agree that Ms Deborah Van Aken's notice of appeal was delivered to the court office at the Central London County Court at 6.30pm on Monday 17 December 2001 by being put, along with copies of all other appropriate documents, through the letter box of the court by a member of her solicitors' staff. That, in my judgment, was "delivering" the documents within the meaning of CPR Part 2.3(1). It follows that the notice of appeal was "filed" within the meaning of CPR Part 52.4(2) on the last day for appealing and that this appeal was "brought" within the time limits prescribed by section 204(2) of the Housing Act 1997.
  70. As the appeal was brought within time, I too would allow the appeal from the order of His Honour Judge Cowell dismissing Ms Van Aken's appeal for want of jurisdiction.
  71. LORD JUSTICE WARD:

  72. Counsel, for whose excellent submissions I am grateful, agree that the essential task of the court is to construe the definition of "filing" in CPR 2.3(1). The words are:
  73. "`filing', in relation to a document, means delivering it, by post or otherwise, to the court office;"
  74. The current rule can be contrasted with the old Order 2, rule 4 of the County Court Rules, which referred to:
  75. "... filing it [the document] in the court office by delivering it to the proper officer for entry by him in the records of the court."

    So one notes that under that old rule we were told where the document was being filed (in the court office); how (by delivery to a person, the court officer); and even why (for entry by him in the record). The current rule is considerably simpler.

  76. I look first to the opening words: "`filing', in relation to a document, means delivering it". To file a document the party has to do something, namely deliver it. It is his act; no one else's. Next, I take the words "by post or otherwise". This indicates to me that the method of delivery by post is an acceptable form of delivery. The postman delivers the post, usually, one hopes, before the court office is open. It involves no further act by anyone, unless perhaps to pick it up later out of the letter box or off the floor and carry it to a more convenient place. So too with the document pushed by a party through the same letter box. The final words, "to the court office", show that delivery is to a place, not to a person, suggesting again that there is no reciprocal act of acceptance required.
  77. Taking all of that together, delivery seems to me to involve a unilateral, not a transactional, act. The ordinary meaning of the words, therefore, "posting through the letter box", as was done here, would be sufficient.
  78. I see the force of Mr Bhose's argument that this construction may lead to uncertainty. If no one is in the office to verify whether the document arrived before or after midnight, there is a potential difficulty. Under 5PD 5.1 and 5.2 the court is required to record on the document the date on which it was filed and enter that date and other information on the court records. It will be apparent, however, to the court staff that a document of the kind we have been dealing with here will have been personally delivered by hand, not by the postman. It may therefore be necessary for enquiry to be made by the court office of the filing party to ascertain when delivery was effected. That is a nuisance, but it does enable the date of delivery to be ascertained and the uncertainty dissolved. I hope, in any event, that this does not happen often.
  79. By way of postscript, I express mild surprise that a document delivered by fax after 4.00pm is treated by 5PD 5.3 as filed the next day. Every fax has the time of its receipt printed upon it and there can be no uncertainty about when it is received. I wonder whether the Rules Committee will reconsider this if a new practice direction is to be made under CPR 5.
  80. I am satisfied, like my Lords, and for the reasons they give, that this appeal should be allowed.
  81. Order: appeal allowed with costs here and below; order below set aside; appeal remitted for hearing in the county court; public funding costs assessment of the appellant's costs.


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