DENTON PRINCIPLES MEANS THAT APPEAL BITES THE DUST: CONFUSION AND BEING “LOST IN THE FOREST” ARE NOT GOOD GROUNDS FOR AN EXTENSION OF TIME

The Denton principles are considered in detail in the judgment of Edward Murray (sitting as a High Court Judge) in Sabesan v London Borough of Waltham Forest [2018] EWHC 2373 (Admin).   The judgment confirms that the Denton principles are applicable to an appeal from the Valuation Tribunal.

THE CASE

The proposed appellant was appealing against a decision of the Valuation Tribunal imposing council tax upon him.  The appeal was filed five months late. The judge considered why the appeal was late and the relevant principles to be applied.

THE JUDGMENT ON EXTENDING TIME FOR PERMISSION TO APPEAL

1. I understand from Mr David Sawtell, counsel for Mr Sabesan, that he had assisted Mr Sabesan in completing the Appellant’s notice, and that he had asked Mr Sabesan to complete Section 11 of the form before signing and filing it. Mr Sawtell had assumed that Mr Sabesan had done so, and referred the Court in his skeleton argument to that part of the form for Mr Sabesan’s reasons why the appeal was lodged out of time, on the assumption that Mr Sabesan had complied with his advice. Shortly before the hearing of this application, a lawyer in the Administrative Court Office noticed the absence and emailed Mr Sabesan requesting his reasons for the delay as a matter of urgency. None were received before the hearing.

2. At the hearing, Mr Sawtell explained that Mr Sabesan had assumed that the form was complete and had signed and filed it on that basis. When preparing his skeleton argument, Mr Sawtell had assumed that Mr Sabesan had followed his advice in relation to completion of Section 11. At the hearing, through his counsel, Mr Sabesan offered to provide a witness statement setting out his reasons for the delay in filing the appeal. I accepted the offer, allowing a short adjournment for the statement to be prepared, so that I could have proper regard to those reasons. I am conscious that the LBWF will not have been served with the witness statement, but as it relates to my consideration of the application for an extension of time in relation to this appeal, and does not go to the substantive grounds of Mr Sabesan’s appeal against the VTE, it seems to me unlikely that LBWF would have had any representations to make on that evidence.

1. 1. I summarise Mr Sabesan’s reasons for the delay in filing his appeal to this Court as follows:

i) After he had received Mr Garland’s decision not review Mr Young’s decision of 12 October 2017, he continued to pursue his claim for relief from his council tax liability through proceedings at the Thames Magistrates’ Court.

ii) He was waiting for a reply from the Council to agree to extend time, so he made another application to the Magistrate’s Court to set aside the liability orders made against him in respect of council tax. That application was heard on or about 13 February 2018. It was dismissed on the basis that he had waited too long to bring the action.

iii) He wrote to the High Court “a normal letter” about that time about this matter, “but they said they could not deal with the matter in a letter back to me”.

iv) He attempted again to appeal LBWF’s decision to impose council tax liability on him to the Thames Magistrates’ Court, but another District Judge rejected the appeal.

v) In mid-March Mr Sabesan approached Mr Sawtell through his clerk for a fee quotation. Upon receipt of the quotation, he was not in a financial position to accept immediately as he was paying his council tax arrears to LBWF and was also in financial hardship. He was able to pay counsel’s fee by the last week of March 2018. Mr Sawtell emailed the paperwork to him on 4 April 2018 asking him to complete 11. Mr Sabesan “misunderstood this and overlooked this”.

1. 1. The question arises as to what principles govern my exercise of the discretion referred to regulation 43(2) of the 2009 Regulations, which, as already noted, provides that the appeal “may be dismissed if it is not made within four weeks” (emphasis added). Mr Sawtell contrasted this language with the language of regulation 21(2) of the 2009 Regulations, which says that the VTE “shall dismiss an appeal … unless the appeal is initiated within two months” (emphasis added). This is, as already noted, subject to regulation 21(6), which provides a specific mechanism for relief to be granted by the President of the VTE from the effect of regulation 21(2). There is no such specific mechanism in relation to regulation 43(2).

   2. Mr Sawtell referred me to the case of Jagoo v Bristol City Council [2017] EWHC 926 (Admin), a decision of Mr Justice Holroyde (as he then was), which also concerned an appeal to the High Court under regulation 43 in respect of a decision of the VTE relating to Ms Jagoo’s council tax liability assessed by Bristol City Council (“BCC”). In that case, Ms Jagoo did not file her appeal until more than four weeks after the date of the VTE’s decision. She had made clear her desire to appeal, but she did so “by an inappropriate procedure”. Holroyde J found that there was no prejudice to BCC as a result of her delay in commencing the correct procedure. He continued as follows at [4] of his judgment:

“It is unnecessary to go into the details of the submissions which were made as to how the court should exercise the discretion granted by [regulation 43(2)]. Both parties submitted, and I accept, that the test set out in Denton v TH White (De Laval Ltd, Part 20 defendant) (Practice Note) [2014] 1 WLR 3926 was not directly applicable to the circumstances of this appeal. It suffices to say that [counsel for Ms Jagoo] advanced a number of reasons why the appeal should be heard, and [counsel for the BCC] very fairly indicated that the respondent adopted a neutral stance. It was in my view clear that this was an appropriate case in which to allow the appellant to proceed, and I therefore permitted her to do so.”

1. 1. It does not appear, however, that Holroyde J’s attention was drawn to the case of Paul Turner v South Cambridgeshire District Council [2016] EWHC 1017 (Admin) in which Mr Justice Warby was also considering an application for an extension of time to appeal under regulation 43 of the 2009 Regulations, and in which Warby J concluded at [7] that “[t]he Denton criteria are applicable [to such an application], either directly or by analogy”. Having applied the Denton criteria, namely, the three stage process set out at [24] in the Denton case, Warby J concluded that the extension of time should not be granted. The circumstances of this case are different, but I note in passing that the appeal in the Turner case was only just over two weeks late.

   2. Warby J says the following at [24] on the question of the principles that apply to an application for an extension of time under regulation 43 and the question of relief from sanctions:

“It is clear that Regulation 43 gives the Court a discretion to dismiss an appeal made out of time. The Regulation can be analysed as imposing a time limit which may be extended only if the court in its discretion agrees; or an automatic sanction from which relief must be sought; or as a ground on which the court may in its discretion dismiss an appeal. I do not believe it matters. The general rule is that appeal courts treat an application to extend time for appealing, when brought after the time limit has expired, as equivalent to an application for relief from sanctions from CPR 3.9; the court applies what have become known as the Mitchell/Denton principles. Sayers v Clarke Walker (A firm) [2002] EWCA Civ 645, [2002] 1 WLR 3095; R (Hysaj) v SSHD [2014] EWCA Civ 1633; [2015] 1 WLR 2472. It is common ground that in this case I should adopt that approach, and I agree that is appropriate.”

1. 1. Mr Sawtell noted that in each case the parties had agreed on the approach that should be taken to the exercise of the discretion under regulation 43 and that the judge in each case had adopted and applied that consensus approach. He urged me to follow Jagoo on the basis that the use of the words “may be dismissed” indicates that the time limit in regulation 43(2) is not an “absolute bar” and therefore there is no sanction in the 2009 Regulations for a late appeal to the High Court. It is not appropriate to take the Denton approach, which applies to an appeal brought under the CPR 52 in relation to an ordinary civil claim. Here is a separate statutory regime, in relation to which the wording of the regulation 43(2) indicates that a less stringent approach should be taken. According to Mr Sawtell, Holroyde J appears to have accepted this in the Jagoo case.

   2. My difficulty with the Jagoo case is that Holroyde J did not indicate what factors led him to conclude that the approach set out in Denton was “not directly applicable to the circumstances of” that appeal or which reasons he found compelling as to why the appeal should be heard. I also note that the Hysaj case does not appear to have been considered or referred to in argument, although it may be that it was considered unnecessary to do so if the case was clearly outside the so-called Mitchell/Denton principles. I have already noted that Holroyde J’s attention does not appear to have been drawn by counsel to the earlier case of Turner.

   3. While, with respect, not questioning the result in the Jagoo case, it seems to me, again, with respect, that the approach taken by Warby J in the Turner case is the correct one. I can see no reason why a less rigorous approach should be taken. I do not consider that there is anything in the argument that the words “may be dismissed” used in regulation 43 of the 2009 Regulations, in contrast to the words “shall dismiss” used in regulation 21(2) coupled with a specific relief from sanction provision in regulation 21(6), indicate that a less stringent approach should be taken in relation to an application for an extension of time under regulation 43. It is appropriate that the 2009 Regulations, which are concerned with the appellate jurisdiction of the VTE, should have more detailed rules in relation to such appeals, while a reference to appeal to the High Court should recognise that the High Court retains discretion in relation to the granting of an extension of time. Nonetheless, that discretion must be exercised by reference to principle.

   4. I believe that the correctness of the approach taken by Warby J in Turner as set out at [24] of his judgment in that case is reinforced by the general approach taken by the Court of Appeal to the question of compliance with procedural rules applicable to tribunals in BPP Holdings Ltd v Revenue and Customs Commissioners (Practice Note) [2016] EWCA Civ 121; [2016] 1 WLR 1915. In relation to an application for extension of time in the context of tribunal proceedings, Lord Justice Ryder in BPP Holdings case referred at [44] to the judgment of Mr Justice Morgan, sitting in the Upper Tribunal Tax and Chancery Chamber in the case of Data Select Limited v HMRC [2012] STC 2195, where Morgan J applied CPR 3.9 by analogy to the application for extension of time made by HMRC in that case. The Data Select case, of course, pre-dates the Denton and Hysaj cases, but it indicates a consistent approach.

   5. Applying, then, the three stage process summarised at [24] in the Denton case:

i) First stage – seriousness and significance of the failure to comply with the deadline: Mr Sabesan filed his appeal five months late. That is a serious and significant delay, as Mr Sawtell rightly conceded.

ii) Second stage – why the default occurred: none of the reasons advanced by Mr Sabesan in his witness statement handed up during the hearing comes close to providing an acceptable reason for a failure to file within the deadline, much less a delay of five months in doing so. Mr Sabesan’s financial difficulties are, of course, unfortunate and attract sympathy, but cannot of themselves excuse a delay of five months. This is particularly so given that the letter dated 6 September 2016 sent to him by LBWF and received by him on 12 September 2016 was quite clear as to the correct route of appeal, namely, to the VTE, and as to the deadline.

iii) Third stage – the need to evaluate “all of the circumstances of the case, so as to enable [the Court] to deal justly with the application, including factors (a) and (b) of Rule 3.9”, which apply by analogy if not directly. Factors (a) and (b) of CPR 3.9 require me to have regard to the need for litigation to be conducted efficiently and at proportionate cost, and to consider the need to enforce compliance with rules, practice directions and orders. Mr Sawtell’s submissions in relation to this third stage were that Mr Sabesan was not someone who was sitting on his hands or who had gone to sleep on his rights. As his witness statement makes clear, he was trying to assert his rights, but he was confused as to how to do so, and he had “become lost in the forest”. Having regard to all the circumstances of the case, including the factors I have mentioned, I find that there is no basis on which I can justify granting an extension of time in this case.

1. Accordingly, I conclude that it is not appropriate to allow an extension of time to appeal in this case. The appeal is therefore dismissed.