DENTON, DELAY AND THE COURT OF APPEAL: OUT OF TIME APPEAL REFUSED

The Court of Appeal considered the Denton criteria in JA (Ghana) -v- The Secretary of State for the Home Department [2015] EWCA Civ 1031. A decision that emphasises that the criteria can be applied rigorously.

“A more appropriate and (individually) proportionate course on the facts of this case would have been to comply with the rules in so far as that was possible and apply for a stay to prevent sanctions taking effect. That is illustrated in this case by the fact that the delay waiting for exceptional funding to be secured did not in fact achieve its objective”

THE CASE

The appellant was appealing against a decision not to revoke a deportation order. The time for appealing expired on the 18th November 2014. The appeal noticed was filed on the 4th June 2015.

KEY POINTS

  • The fact that delay in appealing was caused because the solicitors were acting pro bono and there were problems with public funding was far from decisive in relation to the court exercising its discretion to grant relief from sanctions.
  • The most prudent course of action would have been to do the minimum amount of work necessary to lodge the appeal and, thereafter, apply for a stay in order that public funding could be applied for.
  • Although there was only general prejudice to the respondent the application for an extension was refused.

THE DECISION IN RELATION TO APPEALS OUT OF TIME

The issue was considered in the judgment of Sir Ernest Ryder:

“Delay:

  1. In the absence of relief, the appellant is unable to appeal and having regard to the finality of that determination, this court must consider the evidence submitted in support of an extension of time by reference to CPR r3.9(1) and CPR r1.1(2). The checklist of factors is deliberately refined in the amended rule but the principle of and reason for their consistent application as described by Brooke LJ in Sayers v Clarke Walker [2002] 1 WLR 3095 at [21] remains the same.
  2. On the question of delay, no apparent issue is taken with the rules and their application. Accordingly, I can take these shortly. In accordance with CPR r52.1(4) and PD 52D §3.3(2) the appellant had 28 days from the UT’s decision being given on permission to appeal from its own determination to file a notice of appeal with this court. In the absence of any evidence to the contrary, the UT’s notice of refusal of permission is taken to be received on the second day after posting by first class post in accordance with CPR r6.14. That was on 21 October 2013. Accordingly, time expired to file a notice of appeal with this court on 18 November 2013.
  3. In the absence of any successful application within time to extend time for the filing of the notice of appeal, the appellant is required to obtain relief against the sanction that is implicit in being out of time. Given that in accordance with CPR r52.6 the parties may not agree to an extension of time, the matter must be dealt with on application to the court. As the appellant concedes, that involves a consideration of the overriding objective in CPR r1.1 and relief from sanctions in accordance with rule 3.9(1). The approach to such an application is now set out in the decision of this court in Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926, for example at [21] to [36], inclusive.
  4. The first stage is to identify and assess the seriousness and significance of the failure to comply with the rule, practice direction or court order that engages rule 3.9(1) ie the breach in respect of which relief is sought rather than other failures. The second is to consider why the breach occurred and the third is to consider all the circumstances of the case so as to enable the court to deal justly with the application. I acknowledge the submission of the appellants, reflected in the Denton judgments at [21], to the effect that the third stage is not an exceptionality test but rather an enquiry into all the circumstances so as to consider the consequences of the breach and whether those consequences are disproportionate despite the fact that the breach may have had little practical effect on the course of the litigation.
  5. It is not necessary to set out in extenso the principles in Denton which are now well known but it perhaps prudent to reiterate the manner of their application:

“[35] [The court] will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it. Where there is good reason for a serious or significant breach, relief is likely to be granted. Where the breach is not serious or significant, relief is also likely to be granted.

[36] But it is always necessary to have regard to all the circumstances of the case. The factors that are relevant will vary from case to case. As has been pointed out in some of the authorities that have followed Mitchell, the promptness of the application will be a relevant circumstance to be weighed in the balance along with all the circumstances. Likewise, other past or current breaches of the rules, practice directions and court orders by the parties may also be taken into account as a relevant circumstance.”

  1. The significance of the merits of the substantive appeal to the circumstances of the case was considered in R (On the application of Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633. In essence, although the merits will not normally be a decisive factor in respect of the third stage, the importance of the issues to the parties and the prejudice to the respondent will be of particular relevance. Without prejudice to the generality of the decision in that case, the following paragraphs of the judgment are instructive:
“[46] If applications for extensions of time are allowed to develop into disputes about the merits of the substantive appeal, they will occupy a great deal of time and lead to the parties’ incurring substantial costs. In most cases the merits of the appeal will have little to do with whether it is appropriate to grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process. In most cases the court should decline to embark on an investigation of the merits and firmly discourage argument directed to them. Here too a robust exercise of the jurisdiction in relation to costs is appropriate in order to discourage those who would otherwise seek to impress the court with the strength of their cases.
[…]

[53] The final stage of the process is to consider all the circumstances of the case. As I have already mentioned, this appeal raises a point of considerable importance both to the parties and those in similar positions and to the wider public and it is one which in the public interest needs to be decided as soon as is reasonably possible. That is a factor that argues in favour of granting relief, but I do not think that the merits themselves are sufficiently clear in this case for the court to take them into account one way or the other. Of critical importance, in my view, is the fact that the delay in filing a notice of appeal has not prejudiced the respondent, who clearly understood that the effect of the agreed order was to stop time running. In all the circumstances I have no doubt that an extension of time should be granted.

[…]

[56] Nonetheless, it is necessary to consider all the circumstances of the case before reaching a final decision. In the light of the delay that has already occurred and the various efforts that have been made by Mr Bensi to avoid complying with the judge’s order, I consider that the respondent would suffer prejudice if the court were to grant an extension of time to enable him to appeal against that order.”

  1. In applying the principles from the decided authorities to the facts of this case, the appellant concedes that the delay in lodging the notice of appeal was significant for the purposes of stage one.
  2. The reason for the delay is said to be “difficulties associated with securing public funds” in the context of “the Appellant and his family’s limited financial resources” and the fact that the litigation is said to be of such complexity that “neither the Appellant, nor his wife, could have been expected to advance their case as litigants in person”. It is also submitted that it would have been unreasonable for the appellant’s solicitors to have acted for the appellant pro bono beyond the steps that they in fact took and, in particular, in the circumstance that the appellant is overseas ie this is an out of country appeal, the steps associated with the filing of an appeal with this court would have involved not inconsiderable additional costs beyond lodging the appeal with a fee remission. I shall return to these submissions in due course.
  3. The third stage is said to be informed by the following circumstances: the commitment and expedition, absent public funding, of the appellant’s solicitor’s actions including at all previous stages of the litigation, the appellant’s family’s own attempts to raise funding for the appeal, the merits of the substantive appeal, the importance of the application to the appellant and his family and the article 8 factors relating to the family and, it is submitted, compellingly his 9 year old child. I shall likewise return to these submissions as part of my reasoning in due course.
  4. It is submitted that the respondent’s preferred solution to the appellant’s funding dilemma of an application in time with fee remission and an application for a stay pending public funding would not have led to any shorter delay. Accordingly, it is said, the delay that has in fact occurred has had no significant or serious effect on the course of the litigation. As to prejudice, it is submitted that no particular prejudice is identified by the Secretary of State. The appellant is out of country and nothing about the respondent’s ability to respond to the litigation is apparent. Furthermore, the maintenance of effective immigration control is mitigated by the appellant being out of country and the finality of litigation is to be considered in the context of the likelihood that a further ie new application will be issued. Such costs implications that may survive the decision of this court to direct a rolled-up hearing are submitted to be minimal and to be the consequence of the respondent electing to take the delay point.
  5. I have already set out how the test that the court has described in Denton is to be applied. Dealing with each of the factors in turn by reference to the substantive discussion on the appeal and the statement of evidence of the appellant’s solicitor in support of the application to extend time, I have come to the following conclusions:
a. The appellant has been consistently represented by the same solicitor since October 2009. His circumstances and those of his partner and child in the United Kingdom are well known to his representatives.
b. Sufficient material existed for the appellant’s solicitor and counsel to come to the conclusion in October 2013 that there were merits in an appeal. Very full grounds of appeal were drafted by counsel for the application for permission to appeal to be considered by the UT. A comparison of that document with the grounds and skeleton argument drafted for this court does not establish that any further significant work was required for the same grounds and submissions to be used in this court. Given the extensive nature of the narrative in the grounds filed with the UT (which is to be discouraged), there was little that needed to be done for a skeleton argument to be perfected for use in this court.
c. I accept that funding and the funding dilemma, which was the background context to applications for exceptional funding at the time, presented a natural barrier to ancillary work that can be expected of a solicitor who is at the relevant time acting pro bono. I would not want there to be any discouragement to those who selflessly and professionally agree to undertake work for those who would otherwise be litigants in person. Without further argument from a professional body and for the purposes of this judgment, I am prepared to accept that it was not reasonable to expect the appellant’s solicitors to do more than file the grounds as drafted and apply for fee remission and a stay.
d. I do not accept that the delay that occurred in giving advice about fee remission and applying for it was a necessary component of acting pro bono. On the facts of this case, the same activity that was engaged in by the appellant’s solicitors pro bono in May 2014 could have been undertaken pro bono in October 2013. The risk of obtaining only a partial fee remission on its face suggests that if that was indeed a risk, the existence of some alternative funding would have permitted some steps to be taken at least up to the point that a stay could have been applied for.
e. The availability of public funding and the changes to the public funding regime that was applicable are not a basis for delay that can be relied upon by the appellant without more. The changes pre-dated the determination that is the subject of the appeal and the changes applied to everyone. It is not a (collectively) proportionate use of the court’s resources for there to be multiple applications for extensions of time as a relief from sanctions from everyone affected by public funding changes. Nor is such an approach coincident with the principle of finality of litigation. A more appropriate and (individually) proportionate course on the facts of this case would have been to comply with the rules in so far as that was possible and apply for a stay to prevent sanctions taking effect. That is illustrated in this case by the fact that the delay waiting for exceptional funding to be secured did not in fact achieve its objective.
f. The substance of the appeal will have a continuing impact on the family life of all involved and in particular the child. From that perspective any delay is harmful to all involved. In an appropriate case where a child’s interests are central to the decision under appeal, it might be appropriate to obtain a direction for expedition from this court. The child’s interests in this case are not sufficient in themselves for permission to be granted for a second appeal.
g. There is no point of general public interest in this appeal and although the article 8 issues are of great significance to the appellant and his family, they do not of themselves raise issues sufficient to lead to permission being given in this court. The weakness of the appeal is in itself an important relevant factor.
  1. Given these conclusions, although the prejudice to the respondent can only be said to be general rather than particular to this application, ie in the maintenance of effective immigration control, nevertheless, it would not have been right to extend time and give relief against sanctions in this application. Accordingly, I would refuse the application to extend time.”

RELATED POSTS

Denton in the context of appeals is considered at:

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