EXTENSIONS OF TIME TO APPEAL: MITCHELL AND DENTON PRINCIPLES APPLY

In a combined decision in three cases heard today*  [2014] EWCA Civ 1633 the Court of Appeal set out important guidance in relation to applications to appeal out of time. Practitioners must be aware of the time limit for appeals, when time starts to run and the very restricted criteria for allowing permission to appeal out of time.

*R (Dinjan Hysaj) v Secretary of State for the Home Department

Fathollahipour v Aliabadibenisi

May v Robinson

THE CASES

Three differing cases were heard together to give guidance on the approach that should be taken to applications for extensions of time for filing a notice of appeal after Mitchell and Denton. In each of the cases the applicant failed to file the notice of appeal within time.

KEY POINTS

• The “Mitchell/Denton” principles and the three stage test apply to applications for permission to appeal out of time.
• Practitioners must know the rules in relating to the dates of appeals. The date runs from the date of judgment, not any later date and is not normally extended by any later application.
• There are no special principles applying to public law or public authorities.
• Lack of funding is not a good reason.
• There are no special principles for litigants in person.
• The merits of the appeal will rarely be considered at the application to appeal out of time.

CONSIDERATION OF THE RELEVANT CRITERIA: MITCHELL AND DENTON PRINCIPLES APPLY TO APPLICATIONS TO EXTEND TIME

The Rules

CPR Part 52 includes the following provisions:

Appellant’s notice

“52.4

(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.

(3) Subject to paragraph (4) and unless the appeal court orders otherwise, an appellant’s notice must be served on each respondent –

(a) as soon as practicable; and

(b) in any event not later than 7 days,

after it is filed.

52.6(2) states

(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 the 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))”

1. 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.
2. 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 W.L.R. 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.
3. 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 toAttorney General of Trinidad & Tobago v Matthews.
4. 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.

The application of the Rules

1. 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.
2. 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:

“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.”

1. 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.
2. 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 W.L.R. 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.
   

   The Court went on to consider the case law in detail and an argument that an application for an extension of time to appeal was not comparable to an application for relief from sanctions.

1. 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.

THE MITCHELL PRINCIPLES

The Mitchell principles, as clarified in Denton, were summarised:

“The Mitchell principles

1. 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:

(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.

1. In Denton the court affirmed the guidance given in paragraphs 40-41 of Mitchell, but explained the approach in more detail as follows:

“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.”

NO SPECIAL CRITERIA  IN PUBLIC LAW CASES OR FOR PUBLIC AUTHORITIES

The court refused to find construct any special test for public law cases or public authorities.

(a) Public law cases

1. 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.
2. 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.
3. 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 W.L.R. 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.

SHORTAGE OF FUNDS IS NO EXCUSE FOR DELAY

1. 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.

LITIGANTS IN PERSON

1. 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.
2. 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.

THE MERITS OF THE APPEAL ARE NOT IMPORTANT AT THIS STAGE

(d) The merits

1. 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.
2. 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):

” . . . 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.”

1. In my view exactly the same considerations apply to applications for extensions of time for permission to appeal.

THE THREE INDIVIDUAL CASES

• R (Dinjan Hysaj) v SSHD Permission to appeal had been granted by the trial judge. There was some unacceptable delay. The notice of appeal was filed out of time because the parties did not realise that the order adjourning permission to appeal did not have the effect of extending time.  Ignorance of the rules rarely afforded a good reason. However the delay in filing the application had not prejudiced the respondent who also believed that the time had stopped running. Permission to appeal out of time was allowed.
•  Fathollahipour v Aliabadibenisi The delay was 9 months.  Large parts of that delay was not justified. The respondent would suffer some prejudice. There was nothing that indicated favourably in favour of an extension of time.
• May v Robinson The applicant was appealing on a point of principle. However he was considerably out of time. The dleay was both serious and significant. There were no exceptional reasons.