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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: [2014] WLR(D) 538, [2015] WLR 2472, [2015] 1 WLR 2472, [2015] CP Rep 17, [2014] EWCA Civ 1633, [2015] 2 Costs LR 191 |
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Strand, London, WC2A 2LL |
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B e f o r e :
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE TOMLINSON
and
LADY JUSTICE KING
____________________
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) |
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Between: THE QUEEN on the application of |
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DINJAN HYSAJ | Claimant/Appellant | |
- and - | ||
SECRETARY of STATE for the HOME DEPARTMENT | Defendant/Respondent |
____________________
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. 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 |
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Between: CHRISTINE MAY |
Claimant/ Respondent |
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- and - | ||
JOHN ROBINSON | Defendant/Appellant |
The respondent did not appear and was not represented
Crown Copyright ©
Lord Justice Moore-Bick :
R (Dinjan Hysaj) v Secretary of State for the Home Department
Fathollahipour v Aliabadibenisi
May v Robinson
The Rules
"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).)"
The application of the Rules
"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."
"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. . . ."
The Mitchell principles
(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.
"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
(a) Public law cases
(b) Shortage of funds
(c) Litigants in person
(d) The merits
" . . . 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."
The present appeals
(a) R (Dinjan Hysaj) v SSHD
(b) Fathollahipour v Aliabadibenisi
(c) May v Robinson
Lord Justice Tomlinson :
Lady Justice King :