THERE IS NO SPECIAL RULE FOR PUBLIC AUTHORITIES: SECRETARY OF STATE NOT GRANTED PERMISSION TO APPEAL OUT OF TIME

The previous post emphasised the point that state agencies have no preferred status when it comes to compliance with rules and relief from sanctions. This point was made clear again by the Court of Appeal judgment in The Secretary of State for the Home Department -v- Begum [2016] EWCA Civ 122, where permission to appeal out of time was refused.

“…there was no doubt in my mind that if a similar mistake had been made by solicitors in a private law case, there would have been no question of an extension of time being granted. As Moore-Bick LJ said in Hysaj there is no special rule for public authorities and in this case there were no issues of importance to the public at large.”

THE CASE

The Secretary of State was attempting to appeal a decision of the Upper Tribunal in an immigration matter. The time limit for appeal to the Court of Appeal was 28 days. The Appellant’s notice was filed three months out of time.

THE EXPLANATION FROM THE SECRETARY OF STATE

“Due to an administrative oversight the SSHD regrettably failed to lodge her Appellant’s Notice as per the deadline stipulated by Rule CPR Direction 52D 3.3 (2). The Court of Appeal’s permission is respectfully sought to grant an extension of time in filing this notice. In light of permission to appeal already being granted in the lower courts, it is respectfully submitted that the Respondent has not suffered any prejudice in this matter due to the delay of the filing of the Appellant’s notice. Nor has there been more than de-minimis prejudice to the interest of justice.”

THE DECISION IN RELATION TO APPEALING OUT OF TIME

1. In advancing his submissions to this court, in support of the application for an extension of time, Mr Thomann for the appellant accepts that the principles deriving from the decisions of this court in Mitchell v News Group newspaper Ltd. [2013] EWCA Civ 1537 and Denton v TH White[2014] EWCA Civ 906 fall to be applied in cases of the present type: see R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 and Secretary of State for the Home Department v SS (Congo) & ors. [2015] EWCA Civ 387. As noted by Richards LJ in the latter case a judge must approach an application for relief from sanction in three stages as follows:

“i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.

ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell(at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.

iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders. As listed in para. [35] of the judgment in Denton:

‘Thus, the court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it. …'”

1. As pointed out in Hysaj there is no special rule for public law cases but the importance of the issues to the public at large can properly be taken into account at stage (iii). Again, from the same case, it is to be noted that public authorities have a responsibility to adhere to the rules just as much as any other litigants: see the judgment of Moore-Bick LJ in Hysaj at paragraphs 41 and 42.

2. In this case, Mr Thomann put at the forefront of his submissions the argument that the appellant’s grounds of appeal were strong ones. In this context, Moore-Bick LJ said this (at paragraph 46 of his judgment in Hsaj):

“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…..”

1. In support of the application for an extension of time, Mr Thomann advanced four points: first, the delay had occurred after permission to appeal had been granted; secondly, the omission had not been a deliberate tactical one, but a mere oversight; thirdly, the parties knew that permission has been granted and that an appeal would follow; and fourthly, as already mentioned, the appellant had a compelling case on the merits.

2. For my part, while these submissions were attractively advanced by Mr Thomann, I did not accept them.

3. With regard to the first point, which seemed to me to merge with the third, the fact of the grant of permission did not seem to take the matter much further. The grant of permission to appeal does not necessarily imply that an appeal will follow and, as time recedes the appeal may become less and less likely. As to the second point, I did not think that the fact of simple oversight in the office of the lawyers assisted the appellant. Such errors when they occur in the offices of private solicitors tend not to give rise to a legitimate excuse for delay warranting an extension of time. The situation is no different in this case.

4. On Mr Thomann’s fourth and final point, I recognise that the appellant may have had a relatively strong case that the Tribunals had erred, but that was true in the case of AC, one of the cases considered by this court in SS (Congo) & ors. (supra): see paragraph 112. However, no extension of time was granted in that case: it was thought that even if the appeal had been successful the case would probably have been remitted to the Upper Tribunal. That was a distinct possibility in this case too, as Mr Thomann accepted, although in his arguments on the appeal he also submitted that this court might have seen a way to allowing the appeal without such remission.

5. At this third stage of the Mitchell/Denton criteria, it is also relevant that this was to be a second appeal. While permission to appeal had been granted by the Upper Tribunal, I have grave doubts whether the case properly satisfied the second appeal criteria. Even if the appellant was right that the Tribunals below had reached erroneous decisions, the principles were in truth well known and the decisions, on this hypothesis, merely represented failures to apply those principles properly. No new or separate point of principle or practice arose on the proposed appeals at all. Moreover, there was little, if any, public interest in the appeal being heard. The decision in the case would have been no more than an illustration of the application of well-known principles to the facts of the present case. I would add that the case turned upon a version of the relevant Immigration Rule that is no longer in force. Hence it is, to my mind, impossible to identify how the present case satisfied the relevant test for a grant of permission to appeal in the first place.

6. In my judgment, it is important that the “second appeals” test is not strained to apply simply to a case in which, at first blush, the proposed appellant might appear to have a “good case” when no real issue of principle or practice is raised in the case at all.

7. After hearing Mr Thomann’s helpful submissions, there was no doubt in my mind that if a similar mistake had been made by solicitors in a private law case, there would have been no question of an extension of time being granted. As Moore-Bick LJ said in Hysaj there is no special rule for public authorities and in this case there were no issues of importance to the public at large.