DENTON APPLIED TO OUT OF TIME APPLICATION IN COMMITTAL PROCEEDINGS: THE APPLICANT STAYS IN JAIL

In Lakatamia v SU [2019] EWCA Civ 1626 the Court of Appeal refused an application for permission to appeal out of time in a case where the applicant had been committed to prison for contempt.

“Hysaj establishes that the absence of legal representation is not a good reason for a delay and that litigants in person, whether or not assisted by a McKenzie friend, are required to comply with the rules just as a legally represented party is.”

THE CASE

The claimant had been committed to prison for contempt in breaching freezing orders. He was committed on 29th March 2019. Any appeal needed to be filed by 19th April 2019, it was in fact filed on the 27th August 2019 some four months out of time.

THE PRINCIPLES TO BE APPLIED

“In the decision of this court in Denton v T. H. White [2014] 1 WLR 795, this court laid down the test for a relief against sanctions, and in a further case in this court called R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, this court said that an application for an extension of time ought to be treated in the same way. The three-stage approach in Denton v White requires us to assess the seriousness and significance of the breach, consider why the default occurred and consider all the circumstances of the case.”

APPLYING THE DENTON PRINCIPLES TO THIS CASE: SERIOUSNESS OF BREACH AND REASON

The court addressed the first two limbs of the Denton guidance:-

1. It is accepted by Dr van Dellen, quite rightly in my judgment, that the delay in filing the appellant’s notice is a serious and significant breach. Two reasons are put forward. The first is that following the committal, Mr Su disinstructed his lawyers and correspondence was conducted on his behalf by a McKenzie friend. Hysaj establishes that the absence of legal representation is not a good reason for a delay and that litigants in person, whether or not assisted by a McKenzie friend, are required to comply with the rules just as a legally represented party is.

2. The second reason put forward in the appellant’s notice, and indeed the only reason put forward in the appellant’s notice, is that Mr Su did not have access to the sum of £1,199 for the court fee. Dr van Dellen tells us that he visited Mr Su in prison on 23 August and organised a fee remission which enabled the appellant’s notice to be filed four days later. The judge was satisfied that there was money available, not so much for the purpose of paying a court fee but for purging Mr Su’s contempt, which related to the dissipation of millions of euros. Mr Su has submitted in support of his appeal over 50 pages of manuscript, but nowhere in that material is there any explanation of what attempts, if any, he made to find the money with which to pay the court fee. In considering a different aspect of this case on the papers, Coulson LJ said that he could see no good reason for extending time for appeal, and I agree with him.

ALL THE CIRCUMSTANCES OF THE CASE

The court held that the proposed grounds of appeal were “extremely weak” and this was an important factor against granting an extension.

1. The principal point that was taken in relation to that evidence was that the primary evidence was given by two police officers in relation to the trip to Liverpool by a PC Williams and that that evidence was tendered by way of a witness statement rather than by way of affidavit, as CPR Part 81 requires. There are three points to be made in relation to that. The first is that the essential facts were confirmed by Mr Gardner on affidavit in his ninth affidavit. The second is that there was no application to cross-examine the police officer. The third is that despite the fact that Mr Su was represented by leading counsel at the hearing, no objection was taken to the form in which the evidence was given.

2. When the judge came to sentence, it is clear that those were the two groups of contempt which informed his sentence. There is no complaint about the self-direction that he gave himself in relation to the sentencing process. In agreement with Mr Phillips, I consider that this is one of those cases where even a brief examination of the grounds of appeal show that they are extremely weak. In those circumstances I do not consider that the third stage of the Denton process requires us to extend time. I would refuse to extend time accordingly.