APPEAL STRUCK OUT FOR PROCEDURAL FAILURES: THE IMPORTANCE OF KEEPING THE COURT INFORMED: THE DENTON CRITERIA CONSIDERED

In R (on the application of Kaur) -v- The Secretary of State for the Home Department[2017] EWCA Civ 821   Lord Justice Hickinbottom upheld a decision to strike out an appeal because of procedural failures. The case highlights the importance of making an application in advance when it is clear that a time limit cannot be complied with. The procedural problems that arose on the appeal could have been avoided by simple communication with the court.

“Even where delay results from matters outside the control of the parties, it may result in a breach of the rules which require lodging of documents within a particular time scale. Breach can, of course, be avoided by an in-time application or request for an extension of time”

THE CASE

The applicants were appealing a decision of the Upper Tribunal.  The appeal was in but the documents required for the court to consider the appeal were not lodged in accordance with the rules.  The Master struck out the appeal for non-compliance. The applicants applied for a review, that review was unsuccessful. The applicants then appealed the Master’s decision.

The Appeal

1. On 5 January 2017, 12 Bridge on behalf of the Applicants lodged an appellants’ notice together with a bundle of documents. By CPR rule 52.2 and paragraph 3(3)(h) of CPR PD 52C, an approved transcript of the judgment from the court or tribunal below from which the challenged order derives must be filed with the appellant’s notice. Usually, this court will not be able to consider the merits of an appeal without such a transcript. By CPR rule 52.2 and paragraphs 14 and 27 CPR PD 52C PD, within 14 days of filing an appellant’s notice, an appellant must file a core bundle containing documents as listed in the relevant core bundle index (paragraph 27(1) of CPR PD52D). The core index for appeals from judicial reviews by the Upper Tribunal (Immigration and Asylum Chamber) includes (i) “skeleton argument” (item 2) and (ii) “where the order was made at or following a hearing, Upper Tribunal judgment (either as a transcript or as sent out to the parties)” (item 5).

2. In this case, the Applicants did not file a transcript of Judge Coker’s judgment with the appellant’s notice; nor did their core bundle contain either transcript or skeleton.

3. The Civil Appeals Office wrote to the Applicants’ solicitors notifying them of the defects in the core bundle, and requiring the missing documents to be filed by 10 February 2017. Neither document was filed by that date, nor, prior to that date, did 12 Bridge contact the court with an explanation as to any difficulties. However, on 14 February 2017, 12 Bridge emailed the Civil Appeals Office saying that they still awaited a transcript, and requesting an extension of time for filing a compliant bundle. That email was apparently received by the office, but, it seems, not referred to a court officer for consideration of an extension.

4. The matter was placed in the dismissal list, and 12 Bridge were sent notification that the claim would be dismissed with costs if the defects in the bundle were not rectified, or good reason given for the continuing failure was given, by 7 April 2017. 12 Bridge have recently indicated that that notification was not received; but, in any event, neither was forthcoming and no further request for an extension was sent. On 28 April 2017, Master Meacher dismissed the claim with costs. She appears to have had all relevant documents before her, except the 14 February 2017 email.

5. On 8 May 2017, 12 Bridge sought a review of that decision. On 23 May, 12 Bridge sent the Civil Appeals Office an electronic transcript of Judge Coker’s judgment of 30 November 2016, with a covering email indicating that they had been in difficulties in obtaining the transcript, which was not received until 17 May 2017; but with no indication as to what those difficulties might have been, or any steps they took to overcome them. They said that the transcript had now been received and filed, and the only outstanding document was the skeleton argument. They had instructed Council to prepare this. They asked for a further two weeks to put their house in order.

6. In support of their review application, on 30 May 2017, 12 Bridge filed a letter in substance repeating their letter of 23 May; but still giving no indication as to what their difficulties in obtaining the transcript had been, or any steps they took to overcome them. The letter did not refer to their email of 14 February 2017; nor to the fact that they had not received the 7 April 2017 notification of the dismissal hearing from the court. 12 Bridge repeated their request for further time to file the skeleton argument.

7. On 12 June 2017, I directed that the review application be adjourned into court, to give the Applicants and their legal representatives an opportunity to explain their defaults, none of which had been explained to that date. I made the hearing “rolled-up”, to the extent that I directed that, if I were minded to restore the appeal, I would be minded to deal with the application for permission to appeal. The application was set down for hearing on Monday 19 June 2017.

8. On the afternoon of Friday 16 June, the Civil Appeals Office received a letter from 12 Bridge, setting out a chronology of their request for a transcript, and their attempts to chase the transcribers. This shows that a transcription request was made on 6 January 2017 (i.e. the day after the appellant’s notice was lodged), and 12 Bridge responded to each request from the transcribers for further information promptly, often within 24 hours. The longest delay was between receiving the transcript from the transcribers (17 May 2017), and forwarding it to the court (23 May 2017); but, looked at in the round, the chronology suggests that neither the Applicants nor their legal representatives were responsible for any substantial delay in respect of lodging the transcript.

9. In respect of the skeleton argument, despite 12 Bridge’s letter of 23 May 2017, Mr Alam said that he had been instructed to prepare the document in the week commencing 12 June 2017 – there is no explanation for the three-week delay in instructing him, after the transcript had been received – and he sent in the skeleton electronically, somewhat optimistically, on Sunday 18 June 2017. It was therefore deemed lodged on Monday 19 June, the day of the hearing before me. I saw it for the first time at the hearing. It was formally lodged on the afternoon of 19 June 2017, after the hearing.”

THE REVIEW HEARING

The Review Application

1. 1. That is the background to the application to review Master Meacher’s dismissal of the claim.

   2. Mr Alam accepted that this application is in substance an application for relief from sanction; and, in my view, he was right to do so. Given the background – the failure of the Applicants to lodge required documents timeously, compounded by their failure to keep the court properly informed of their difficulties in obtaining a transcript – in my judgment, the Master’s decision to dismiss the claim was justified. On this review, I must consider whether, as matters now stand, that dismissal should be maintained.

   3. It is now well-established that the guidance of this court on relief from sanction cases in Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537; [2014] 1 WLR 795 and Denton v TH White Limited [2014] EWCA Civ 906; [2014] 1 WLR 3926 informs the court’s approach to compliance of parties generally, including its approach to application to set aside default judgments (see Regione Piedmonte v Dexia Crediop SpA [2014] EWCA Civ 1298 and Singh v Thoree [2015] EWHC 1305) and to out-of-time applications for extensions of time (R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 WLR 2472). The court must therefore first identify and assess the seriousness and significance of the relevant failure to comply with any rule, practice direction or court order. If the breach is neither serious or significant, then the court will likely grant relief. If it is serious or significant, then the court will consider why the default occurred. Finally, the court will evaluate all the circumstances of the case, so as to enable it to deal justly with the application. Although it may be insufficient for the applicant to show that he has an arguable substantive case, it is unlikely that an applicant will succeed is he fails to show that he has real prospects of succeeding with his claim or defence, as the case may be, or that there is some other good reason why the judgment should be set aside. These principles equally inform the exercise of the court’s jurisdiction of its own motion to dismiss a claim or appeal for a party’s procedural default.

   4. Of course, there may be good reason why a party cannot comply with a rule, practice direction or specific order of the court. This court, including the Civil Appeals Office, is sensitive to the problems that parties may have obtaining transcripts of judgments for the purposes of an appeal. Even where they apply for a transcript promptly, it is unfortunately the case that an approved transcript is often not provided in time to file with the appellant’s notice, or even until well after the 14-day period for filing it as part of the appeal core bundle has passed. Unhappily, several months can elapse from request to provision of the transcript. To avoid unnecessary duplication of work, preparation of the skeleton argument sensibly may have to await the transcript.

   5. Even where delay results from matters outside the control of the parties, it may result in a breach of the rules which require lodging of documents within a particular time scale. Breach can, of course, be avoided by an in-time application or request for an extension of time (Hallam Estates v Baker [2014] EWCA Civ 661). Paragraph 2.7 of CPR PD 23A, which applies to formal applications made under CPR Part 23, provides that:

“Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.”

That emphasises the need for the party in default to keep the court informed, and to ensure that the procedural position is regularised promptly. However, the Civil Appeals Office does not in practice require a formal application to be made to extend time for filing documents: it will act upon a letter or email. That is reflected in the standard letter issued by the office at the outset of an appeal, which states:

“If you are unable to comply with any of the relevant time limits and there are good reasons for an extension of time, you should write, wherever possible before the time limit has expired, to the Civil Appeals Office setting out the reasons and the length of extension sought. You will then be informed whether or not an extension has been granted.”

1. Therefore, when delays in obtaining a transcript or other document occur, the party with the obligation to file it is under an obligation to keep the Civil Appeals Office informed, and make a request for an extension of time as and when required. Such requests should be made prior to time expiring. Where a transcript is long-delayed, that may require a series of requests. A request for an extension can be made without a formal application, or payment of a fee; but each request should be accompanied by information as to the date on which the transcript was ordered and paid for, and an update from the transcriber as to its progress. It may be difficult to indicate with precision when the transcript will be available, but an estimate should be provided, reflected in the length of the extension sought. The request should also seek an extension for the filing of any consequential documents, such as a skeleton argument.

THERE WAS “GOOD REASON” FOR THE DELAY

The judge concluded that there was good reason for the delay. However the applicants’ solicitors had been at fault in failing to keep the court informed of developments and make (what could have been a relatively informal) application for an extension of time prior to the breach.

1. In this case, 12 Bridge frankly accept that, even with the email of 14 February 2017, they failed to keep the court properly informed of their difficulties in obtaining the transcript and skeleton. As I have already indicated, on the material before her, Master Meacher was justified in dismissing this claim on the basis of the Applicant’s failure to comply with the requirements of the CPR so far as lodging papers was concerned. Mr Alam accepted that, even taking into account the 14 February 2017 email, dismissal would have been justified. I agree.

2. In considering whether the dismissal should be upheld, on a relief from sanction basis, Mr Alam accepts that the breach of the CPR was “serious” as that term is used in the Denton line of cases. Again, I agree. The combination of the length of time by which the relevant rule for lodging the relevant documents was exceeded, and the failure of the Applicants to make an appropriate request for an extension of time, make it such.

3. In relation to the second stage, I accept that there was a good reason for the delay, or most it, namely the time which it took for the transcriber to produce the transcript of the judgment below. That is an important factor to take forward into the third stage, namely the evaluation of all the circumstances of the case, so as to enable the court to deal justly with the application. Of these factors, the failure of the Applicants to seek extensions and keep the court appraised of the problems they encountered is clearly important.”

The judge went on to consider the merits of the claim generally and concluded that there was no reason to disturb the Master’s decision to dismiss the appeal.