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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v Akbar  EWCA Civ 16 (19 January 2017)
Cite as:  WLR 1055,  EWCA Civ 16,  CP Rep 17,  WLR(D) 30,  1 WLR 1055
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ON APPEAL FROM THE COUNTY COURT AT OLDHAM
DISTRICT JUDGE FOX
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCFARLANE
THE HON. MR JUSTICE CRANSTON
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
Mr Sohail Mohammed (instructed by Kingstons Solicitors) for the Respondent
Hearing date: 15 December 2016
Crown Copyright ©
Mr Justice Cranston:
Jurisdiction of Court of Appeal
(1) An employer to whom a penalty notice is given may appeal to the court on the ground that
(a) he is not liable to the imposition of a penalty,
(b) he is excused payment by virtue of section 15(3), or
(c) the amount of the penalty is too high.
(2) The court may
(a) allow the appeal and cancel the penalty,
(b) allow the appeal and reduce the penalty, or
(c) dismiss the appeal.
(3) An appeal shall be a re-hearing of the Secretary of State's decision to impose a penalty and shall be determined having regard to
(a) the code of practice under section 19 that has effect at the time of the appeal (in so far as the appeal relates to the amount of the penalty), and
(b) any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware);
and this subsection has effect despite any provision of rules of court."
"(3) An employer is excused from paying a penalty if he shows that he complied with any prescribed requirements in relation to the employment."
The penalty notice in Mr Akbar's case
The County Court appeal
Appeal hearing at the County Court
"I would just highlight also that you have had conduct of this matter pretty much throughout and you will be aware that the same issue happened with regard to the appeal, the N161, they are saying they never received that either, and that is something that the court sent to them. There seems to be a bit of a theme going on of them not receiving things from the solicitor's firm or from the court itself. It is extremely unsatisfactory."
"So they did not serve their evidence. They say that they did not have the evidence from the applicant. They have not filed the trial bundle. They have not supplied the witness who was requested to attend. So I am afraid that is it. This is the second time. The appeal is allowed."
"Effectively, it is an application for relief from sanction. There is no explanation as to why the witness is not here. There has been a catalogue of failure on the part of the respondent in this case. To simply say on, now, the second occasion before me, "Well there is no record of documentation being received," really is not good enough."
The present appeal
i) The Secretary of State breached the case management order of District Judge Fox by failing to file and serve evidence relied upon by 6 May 2015. This resulted in an application for an "unless" order as a result of which an order was made requiring her to file her evidence by 28 May 2015.
ii) The Secretary of State failed to file her evidence as required by 28 May 2015. This resulted in an application to strike out her statement of case and that the appeal be allowed on 9 June 2015. "With significant latitude", as Mr Mohammed described it, the court decided against striking out the Secretary of State's case.
iii) The Secretary of State failed to file and serve an agreed appeal bundle five working days before the second appeal hearing on 9 July 2015.
iv) The Secretary of State failed to file and serve her evidence in the appeal by 7 July 2015.
v) The Secretary of State failed to file and serve an agreed appeal bundle five working days before the second appeal hearing on 21 September 2015.
vi) The Secretary of State failed to produce Ms Sharples for cross-examination at the appeal hearing on 21 September 2015 as requested some three months earlier.
Lord Justice McFarlane:
Lady Justice Arden: