TWO DAYS LATE SERVICE OF NOTICE OF APPEAL IS A "TRIVIAL" ERROR: HIGH COURT DECISION CONSIDERED
In Harrogate Borough Council -v- Secretary of State for Communities & Local Government & Zammitt  EWHC 1506 (Admin) the appellant was two days late in serving a notice of appeal. His Honour Judge Behrens (sitting as a judge of the High Court) had to consider whether relief from sanctions should be granted.
The Council was appealing against a decision of a planning inspector granting a planning appeal by Mr Zammitt. The Secretary of State (a party to the appeal) conceded that the appeal should be allowed and (by implication) that time should be extended. Mr Zammitt did not.
Mr Zammitt relied on four defects:
- That the claim form was not served in time.
- The claim form was served at the wrong address.
- The Council failed to join other interested parties into the proceedings.
- A failure to comply with the Pre-Action Practice Direction and inform him of its intention to appeal.
The Council accepted that the last day for service was the 16th January 2014. It wrongly believed that time expired on the 17th. The Notice of Appeal had been hand delivered and posted on the 17th January 2014. Mr Zammitt become aware of them on the 18th January.
THE JUDGE’S FINDINGS
The judge made a number of central findings.
There may have been a small amount of prejudice caused by late service of the claim form, however there was no significant prejudice.
Service at the wrong address
The claim form should have been served at Mr Zammitt’s home address. Instead it was served at the address given in the planning applications. It came to his attention on the 18th January. The judge made an order under CPR 3.10 validating the service as at 18th January 2014.
The judge was not satisfied that there were other “interested parties” who needed to be served.
There was no specific protocol dealing with claims under s.288 of the Town and Country Planning Act 1990. The judge found that this was not a case that the parties could settle the matter without legal proceedings. The only question was whether the planning inspector’s decision was wrong in law. The case did not come within the terms of the Pre-Action Practice Direction. Even if he was wrong this was not an appropriate case to impose a sanction on the Council.
Extension of time
The court had power to extend time for service of the claim form.
Review of the relevant principles
As is becoming increasingly frequent I was referred to the decision of the Court of Appeal in Mitchell v News Group Newspapers Ltd  1 WLR 795 and the increasing number of cases which seek to apply the principles contained in that judgment.
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
- In Re Guidezone Ltd  EWHC 1165 (Ch) Nugee J expressly held that the Mitchell principles applied to an application to extend time under CPR 3.1(2)(a). He summarised the principles by reference to the decision of Leggatt J in in Summit Navigation Ltd v Generali Romania Asigurare Reasigurare SA  EWHC 398 (Comm) as follows:
“i) On an application for relief from a sanction under CPR 3.9, it is usually appropriate to start by considering the nature of the non-compliance. If the non-compliance can be regarded as trivial or insignificant, the court will usually grant relief provided that an application is made promptly .
ii) If the non-compliance cannot be so regarded, the court should consider why it occurred and will still be likely to grant relief if there is a good reason for it .
iii) Good reasons are likely to arise from circumstances outside the control of the party in default ; by contrast, inefficiency or incompetence of a party’s solicitors – for example, where a deadline is simply overlooked – is unlikely to amount to a good reason .
iv) Where the non-compliance is not trivial and there is no good reason for it, the court is still required by CPR 3.9 to consider “all the circumstances of the case, so as to enable it to deal justly with the application”  + . However, relief should not usually be granted in such cases because the circumstances which should generally be given greatest weight are the two factors specifically mentioned in the rules  + .”
- In Chartwell Estate Agents v Fergies Properties SA  EWCA Civ 506 the Court of Appeal upheld a decision of Globe J to grant relief from sanctions Davis LJ (in paragraph 34) summarised the principles in much the same way as the summary in Guidezone. He also referred to a passage from paragraph 46 of Mitchell :
The new more robust approach that we have outlined above will mean that from now on relief from sanctions should be granted more sparingly than previously.
- The default related to the exchange of witness statements. Both sides were in default and the trial date would not be lost. The Court of Appeal held that Globe J was entitled to exercise the discretion in the way he did. At paragraph 59 Davis LJ said:
Given that, and given all the other factors, this was one of those cases in which, notwithstanding the paramount importance and the great weight to be given to the two matters specified in CPR 3.9, those two matters could reasonably be assessed as outweighed by all the other circumstances. There is, in my view, no proper basis for interfering with the judge’s evaluation of the position and his exercise of discretion
Application of these principles on the facts of this case
In granting the extension of time the judge took into account the wider public interest. He held that the period of delay in this case was “trivial” and an extension would be granted on those grounds. However even if he had not found the delay to be trivial he would have extended time, applying the Mitchell criterial.
- As Laws LJ pointed out in paragraph 19 of Corus there is a general public interest in having viable challenges to decisions of public authorities ventilated in proceedings. To my mind that principle is reinforced where as here the Secretary of State after careful consideration has conceded that the decision of the Inspector is wrong in law and that the decision should be quashed.
- It is clear from the Inspector’s decision that there is a pressing need for affordable housing in Harrogate. The effect of the decision is to reduce the additional affordable housing in Harrogate from the three which Mr Zammitt agreed to provide to only one. Thus there is a wider public interest than simply a dispute between private litigants.
- For reasons that I have given I do not accept that Mr Zammitt suffered any significant prejudice by the two day delay in the service of the claim form. In those circumstances, as Sullivan J pointed out in Wandsworth, the assessment of the merits is an important factor. In the light of the Secretary of State’s concession and the surprising nature of the decision my preliminary assessment is that the Council has good prospects of success in the application.
- I accept that even under the pre- Mitchell regime the power to extend time was to be used sparingly in the light of the statutory policy that applications such as this are to be dealt with expeditiously.
- However, this was not a case where the delay was substantial and to my mind the public interest identified by Laws LJ outweighs the other factors. Thus under the pre Mitchell regime I would have extended time. Like McCombe J in Corus I do not consider that it will be at all just to refuse an extension of time for two or three days to challenge an action of a public authority that is potentially unlawful where the error was of the nature that occurred here.
- I have to ask myself whether the position has changed in the light of the new regime. In my view the delay of two days in serving the claim form is to be regarded as trivial on the facts of this case. I take the view that the application has been made promptly. The Council did not appreciate that the application was out of time until it received the email of 31st January 2014. It attempted to explain the position in its email of 3rdFebruary 2014. By 5th February 2014 it had become clear that Mr Zammitt would not agree to an extension. The application was issued on 12th February 2014. To my mind that chronology is sufficiently prompt. In those circumstances it seems to me to be an appropriate case for relief.
- If, contrary to my view, a delay of 2 days is not to be regarded as trivial I accept that the reason for the delay (a miscalculation of the dates by Mr Power) is not a good reason. I would then have had to consider all of the circumstances of the case. I would have had in mind the principle that relief should not usually be given because the two factors mentioned in rule 3.9 usually trump all other factors. I would, however, still have granted relief. In particular I would have held that the public interest I have identified coupled with the relatively short (albeit non trivial) delay in service of the claim form outweighed the two factors in CPR 3.9 and any minor prejudice Mr Zammitt may have suffered by reason of the two day delay.