EXTENSIONS OF TIME AND THE DENTON CRITERIA: WHEN IT IS UNSATISFACTORY FOR AN APPELLANT TO GO HUNTING

In  Secretary of State for Work and Pensions & Anor v Hughes & Ors [2021] EWCA Civ 1093 the Court of Appeal were, shall we say, slightly unimpressed by an argument that a judge should have applied the Denton test when granting an extension of time. The appellant had not made this argument below, indeed the judge addressed the matter on the basis that the appellants originally argued.

“It is, in our view, unsatisfactory for the Secretary of State to invite this Court to go hunting for reasons to overturn a judge who applied the test advanced by the Minister at first instance.”

 

THE CASE

The applicants brought proceedings seeking review of decisions made by the Pension Protection Scheme.  The applications were successful. The appellant Secretary of State appealed against the decision. One of the grounds of appeal was that the applications were made out of time, the judge should not have granted an extension of time and applied the wrong criteria.

THE ISSUE IN RELATION TO TIMING

It was common ground that the original applications were brought out of time.  The judge granted an extension of time.

THE COURT OF APPEAL’S CONSIDERATION OF THE ARGUMENTS ON THIS ISSUE
Secretary of State’s Appeal
Ground I: Delay / timing
(i) The Issue
    1. The judge held that the challenge to the cap was brought substantially out of time under CPR rule 54.5(1). The grounds for bringing the claim first arose when the individual claimants were first affected by the relevant statutory provisions, which was when their employer became insolvent and their pension scheme entered the PPF assessment period [91-92]. He also accepted that the Claimants had not specifically served witness statements explaining the delay, nor had they formally applied for an extension. Nonetheless the Judge, exercising his discretion, granted the extension of time necessary to enable the claim to continue.
    1. The Secretary of State challenges this conclusion. The PPF does not. The Claimants have not sought to appeal the judge’s conclusion that they were prima facie out of time. It is also common ground that the due formalities were not adhered to.

THE ARGUMENTS OF EACH PARTY

(ii) Submissions of parties
    1. The arguments of the Secretary of State focused upon the failure of the Claimants to adhere to the due formalities, namely the making of a formal application and the service of explanatory evidence explaining the delay, and as the implications of this.
    1. The argument can be summarised as follows.
    1. First, the failure to serve a formal application for an extension of time should have been treated as fatal to the claim: see eg R (Delve) v SSWP (“Delve“) [2020] EWCA Civ 1199 at [124-127]. This case concerned an age and sex discrimination challenge under both ECHR and EU law to primary legislation which changed the state pension age. The claim was brought many years out of time. The Court emphasised the need for a formal application supported by relevant evidence. Further, under CPR PD54A, §§5.6(3) and 5.7(1) the claim form itself “must” be accompanied by an application to extend the time limit for filing the claim form and “any written evidence“. The Administrative Court Judicial Review Guide (2019) also notes at §5.4.4.3 that the Court will require evidence explaining the delay and will only extend time if an adequate explanation is given for the delay.
    1. Secondly, it is said that the judge erred in simply asking himself whether there was a “good reason” for extending time under CPR rule 3.1(2) [97]. The test that should have been applied is the same as under an application for relief from sanctions under CPR rule 3.9: R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 272 [36]; R (Fayed) v Secretary of State for the Home Department [2018] EWCA Civ 54 at [22]. The judge failed to apply the three-stage test restated in Denton v TH White Ltd [2014] 1 WLR 3926 (“Denton“). Had the judge considered the matter by reference to Denton he would have been bound to refuse the application for an extension.
    1. Thirdly, the Claimants’ failings were serious and significant. The issue of limitation had been raised in pre-action correspondence. A request for an extension of time was belatedly made, but only in the skeleton argument, and it was unsupported by evidence or explanation for the non-compliance. Had the claim been refused this could have removed the part of the claim (relating to the legality of the cap) for which the Secretary of State was responsible.
    1. Fourthly, the judge failed to consider the public interest in the need to enforce compliance with procedural rules and the need for litigation to be conducted efficiently and at proportionate cost. Instead, he focussed upon whether other private law claims might be brought in the future which would raise the same or similar issues: Judgment, [98]-[102]. This was a factor the judge should have ignored since it undermined the very time limit itself: see eg the Divisional Court in R v HMRC ex p Eurotunnel [1995] CLC 392 at [401] (“Eurotunnel“). In any event the judge failed to appreciate that had these proceedings been compelled to proceed as private law claims then the nature of the proceedings, including the remedies available, might have been very different.
    1. Fifthly, the judge erred in finding at [101] that there would be no prejudice. He should have concluded that the attempt to unravel the relevant scheme would cause damage to good public administration: see eg Delve (ibid) at [129].
    1. The respondents disagree. Their submissions can be summarised as follows.
    1. First, it is said that the judge should have applied the “Denton” test. However, before the judge this was not the approach taken by the Secretary of State, who argued that the test was whether there was a “good reason” to extend time. In reality there was no practical difference between the approach applied by the judge and the Denton test. In substance the judge did consider all of the components of the Denton test. In relation to due formalities the judge found that there was non-compliance which he categorised as “regrettable“. The suggestion that the judge failed to consider the implications for the administration of justice of allowing public law claims so long out of time is wrong. The judge expressly recognised the importance of compliance with time limits in public law cases [97]. It follows that he did not fail to address whether there was non-compliance or its consequences. But the nub of his analysis can be described as a Denton limb 3 evaluation. Under the third limb once it has been found that there were failings in terms of formalities and evidence a judge is still required to consider the circumstances in the round; this the judge did. The law makes clear that the mere fact of procedural failings is not, in and of itself, sufficient to warrant the setting aside of the proceedings: see eg Mitchell v News Group Newspapers [2013] EWCA (Civ) 1537[2014] 1 WLR 795. Standing back there is no basis upon which it can be said that the judge erred or that even if he did that it was in any way material. This being so the application for permission to appeal must fail at this first hurdle. Secondly, the decision of the judge to grant an extension was an exercise of discretion. It was essentially a case management decision. On appeal the Court should be slow to interfere: see eg R (Thornton) Hall Hotel Ltd) v Wirrall MBC [2019 EWCA Civ 737 paragraph [21(8)]. For the Court to intervene there has to be misdirection in law, a failure to have regard to a relevant consideration, or the taking into account of some irrelevant matter. The judge’s conclusions had to be “clearly wrong“, and the Court will not interfere so simply because it might have taken a different position to that of the judge.
    1. Thirdly, in any event, the reasons given by the judge for justifying the extension were compelling. He treated the case as public interest litigation of wide importance which is an indisputable conclusion. The judge also recognised that it was open to him to order that the present case could have been directed, under CPR 8, to continue as a private law claim subject to entirely different and much longer limitation periods (six years). Further, much the same would apply to third parties who equally could enforce their rights as private law claim subject to the six-year limitation period.
    1. Fourthly, the judge made a sensible case management decision. He was faced with a hearing to determine questions which all parties recognised as of wide public importance. In these proceedings all relevant parties were present, including the Secretary of State, the PPF and scheme members. This enabled the judge to hear argument and receive evidence from all affected interests. It would have been a waste of time and judicial resources if at the end of a five-day hearing the judge had simply held that all the claims failed for being out of time. The consequence would have been a flurry of subsequent, piecemeal, individual, claims where wider interests could not readily be assessed, where the Court would have been denied the full range of submissions, and where there could have arisen a series of new procedural issues which could have deflected the case far from its true pith and substance.

THE COURT OF APPEAL’S DECISION: THE APPELLANT CANNOT GO HUNTING…

(iii) Conclusions
    1. We turn to our conclusion. We take the view that this Ground is not arguable. We refuse permission to appeal. This is for the following reasons.
    1. First, we can detect no error of law. The Secretary of State criticises the judge for not applying Denton but did not invite him to apply that approach at first instance. The “good reason” approach followed by the judge was the test set out in written submissions by the Secretary of State. In fact the judge interpreted the “good reason” test as requiring him to determine what was “appropriate and just” [97]. It is, in our view, unsatisfactory for the Secretary of State to invite this Court to go hunting for reasons to overturn a judge who applied the test advanced by the Minister at first instance. But in any event, it is not in our view correct to say that had Denton been applied more mechanistically the judge would have arrived at a different conclusion. As the Respondents point out, in substance, the judge did address (albeit briefly) the nature, extent and consequences of the procedural fallings (Denton limbs 1 and 2); but was persuaded to permit the claims to proceed by the broader public interest nature of the issues (Denton limb 3). When we focus on substance and not form, we can see no error in the approach adopted. In substance the judge did not err. This being so the decision was an exercise of discretion by a first instance judge in a public law case as a matter of case management. We should be very slow to interfere. In our judgment this ground must fail for this reason alone.
    1. Secondly, if, contrary to our clear view, the judge did apply the wrong test, and it therefore fell to us to consider the exercise of discretion afresh, we would have exercised the discretion in the same way, and for essentially the reasons which the judge gave. The reasons given by the judge for extending time were sound. He set these out at [98] – [100]. They can be summarised as follows: (i) the rights in the present case sound in both public and private law; (ii) because these rights sound in private law, longer limitation periods apply; (iii) it can be necessary even in private law proceedings to consider public law issues; (iv) in the present case the 24 individual claimants could have brought private law proceedings for claims going back 6 years; (v) these (directly effective) private law claims could have raised the issue of the lawfulness of the cap under EU law; (vi) the Administrative Court could have ordered (under CPR 54.20) that the claims in relation to this particular challenge (to the cap) continue as if started as a private law claim under CPR 8; (vii) this was a “powerful factor” indicating that it would be right to extend time to allow this judicial review claim to be brought; (viii) furthermore, the claim raised issues of general importance which were likely to arise in future cases in any event. In short it was better to resolve those issue now rather than leaving them as live but unresolved.
  1. Thirdly, our conclusion is fortified by the fact that this being an appeal much water has now passed under the bridge. The present case is a good illustration of why this Court should be very wary of interfering. We questioned counsel for the Secretary of State about the consequences for this appeal if his arguments were correct. If the Court had agreed with the Secretary of State, we would, on this analysis, allow the appeal on a technical ground leaving extant all of the judge’s detailed reasoning on the important substantive issues arising. This would risk legal uncertainty since the Court would not have rejected that reasoning; if we had set aside the judgment below on a purely technical ground it would not have been open to us to say that the reasoning was wrong in law – we would not have formed that conclusion. Yet again, if we had concluded that the judge erred in relation to timing but had then proceeded to address and decide all the legal issues then the argument of the Secretary of State about timing would have been academic. In the event this Court has addressed the legal arguments arising and we were not invited to address timing as a preliminary issue and then bring the appeal to halt if we were with the Secretary of State.