DELAY, DENTON AND MISTAKES BY THE COURT OF APPEAL: THE COURT’S FAILINGS MEANT THAT IT WAS FAIR AND JUST TO GRANT AN EXTENSION OF TIME

It is rare to see a judgment where the Court of Appeal openly issues an apology for its own administrative errors.  We have such an apology in the judgment in Rana v First-Tier Tribunal (Immigration & Asylum Chamber) [2024] EWCA Civ 1211.  The applicant’s solicitors had erred in failing to provide the court with all the necessary documents to allow the appeal to be considered. However the subsequent omissions and delay by the Court of Appeal office meant that the applicant’s conduct had made no material difference to the timetable.  The applicant was, therefore, granted an extension of time.

These failures to seal the appellant’s notice either in November 2020 or in April 2022 mean that the serious failings on the part of the applicant’s legal representatives would not have made any material difference to the progress of the application. In these very particular circumstances, in my judgment it would be fair and just, and in accordance with the overriding objective, to grant the applicant an extension of time for filing the appellant’s notice and bundle.”

THE CASE

The applicant was seeking to appeal a decision in the Upper Tribunal (Immigration and Asylum) Chamber made on the 30th July 2020.

THE CLAIMANT’S ERRORS ON APPEALING

The applicant filed a Notice of Appeal but did not file the other required documents, including the sealed order being appealed and the skeleton argument.

THE MISTAKES BY THE COURT OF APPEAL

The appeal was lodged during the COVID pandemic period.  The Court of Appeal made a number of errors and overlooked the appellant’s notice.

The appellant’s notice was filed on 20 April 2022. The appellant’s notice was then overlooked and further delays occurred. It appears, from the appellant’s notice supplied to the court after the conclusion of the oral hearing on 3 October 2024, that the appellant’s notice was actually issued and sealed on 15 May 2024. The papers were then referred for directions on 5 June 2024, which was over two years after the second appellant’s notice had been filed by the applicant’s solicitors, and nearly four years after the filing of the first appellant’s notice. It was because of these delays that Stuart-Smith LJ directed an oral hearing of the applications.”

PERMISSION TO APPEAL OUT OF TIME GRANTED

The Court of Appeal found that there had been serious errors and omissions by the applicant’s solicitors who had failed to file the necessary documents when the appeal was lodged.  However there had also been serious errors, omissions and delay by the Court of Appeal.  This meant that the applicant’s mistakes had not caused any material difference to the delay. It was, therefore, appropriate to grant an extension of time.

 

“Extension of time and an apology

    1. Mr West, on behalf of the applicant, applying the relevant tests from Denton v TH White Limited [2014] EWCA Civ 906[2014] 1 WLR 3926, submitted that: there was a serious failure on the applicant’s behalf to comply with the rules relating to the filing of documents for the appeal; for which there was no good reason; but where, having regard to all the circumstances of the case, it was appropriate to grant an extension of time. Mr Hansen, on behalf of the interested party, noted the relevant chronology and submitted that it was a matter for the court to determine what to do.

 

    1. There was a serious failure on the part of the applicant’s legal representatives to comply with the rules relating to the filing of documents for the appeal. It is never enough simply to send in an appellant’s notice and leave the office to chase for missing documents. Such an approach creates extra work for the office, and leads to delays in dealing with other appeals. Further, there was no good reason for the failure to file the documents.

 

    1. However, when considering all of the circumstances of the case, it is necessary both to acknowledge, and to apologise on behalf of the Court of Appeal for, the failures to seal the appellant’s notice in or around November 2020, and for the failures to seal the refiled appellant’s notice from April 2022 to May 2024.

 

  1. These failures to seal the appellant’s notice either in November 2020 or in April 2022 mean that the serious failings on the part of the applicant’s legal representatives would not have made any material difference to the progress of the application. In these very particular circumstances, in my judgment it would be fair and just, and in accordance with the overriding objective, to grant the applicant an extension of time for filing the appellant’s notice and bundle.