DENTON: EXTENSIONS OF TIME AND COSTS: OPPOSITION TO APPLICATIONS IS NOT ALWAYS UNREASONABLE

In The Queen on the Application of IDIRA -v- The Secretary of State for the Home Department [2015] EWCA Civ 1187 the Court of Appeal made a number of observations in relation to extensions of time, the Denton criteria, and costs.

“A party is not required to agree to an extension of time in every case where the extension will not disrupt the time-table for the appeal or will not cause him to suffer prejudice. If the position were otherwise, the court would lose control of the management of the litigation.”

KEY POINTS

  • The respondent to the appeal was considerably out of time in serving a respondent’s notice and made an application for permission to serve out of time.
  • The Master granted the extension of time but ordered the respondent to pay the appellant’s costs on an indemnity basis.
  • There was no duty on a party to agree to applications made considerably out of time.
  • The Master was correct to order that the respondent pay the appellant’s costs of the application  to extend time on an indemnity basis.

PRACTICE POINTS

  • This case highlights the high degree of judgment that is called for when considering applications made by the opposition.
  • It also shows that a party, making late applications, cannot automatically assume that the court will penalise opposition just because the application will not disrupt the court timetable.

THE CASE

The appellant brought an appeal against a decision in relation to the use of prisons from than Immigration Removal Centres to hold time-served foreign national defendants who have served their sentences and were awaiting deportation.  The respondent served a respondent’s notice late and required permission.  Permission was granted but the respondent was ordered to pay the costs. The substantive appeal was dismissed. The respondent appealed against being ordered to pay the appellant’s costs in relation to the respondent notice.

THE JUDGMENT ON SANCTIONS AND COSTS

The Master of the Rolls considered this issue:
THE COSTS OF THE RESPONDENT’S NOTICE
  1. On 23 July 2015, the respondent applied for permission to file a respondent’s notice out of time. On 17 September 2015, Master Meacher allowed the application and ordered the respondent to pay the appellant’s costs of and occasioned by the application for an extension of time for filing the respondent’s notice on the indemnity basis. The respondent appeals against this order (for which she gave careful reasons). But before I come to these, I need to set the scene.
  2. Jay J dismissed the appellant’s claim on 19 December 2014. By consent, the time for appealing was extended from 9 to 23 January 2015. The appellant’s solicitors filed the appellant’s notice on 23 January, but contrary to PD 52C para 3(3)(g) did not file a skeleton argument at the same time. The respondent consented to an extension of time until to 27 February. On 25 February, the appellant’s counsel asked the court for a further extension to which the respondent consented again. The appellant’s skeleton was finally filed on 12 March.
  3. The hearing of the appeal was listed for 2 or 3 November. On 23 July, 19 weeks after the filing of the appellant’s skeleton argument and 14 weeks before the scheduled hearing date, the respondent filed her respondent’s notice and applied for an extension of time in accordance with PD 52C para 12. The notice was accompanied by the respondent’s skeleton argument. A sealed copy was served on the appellant on 5 August.
  4. In the notice, the respondent asked the court to dismiss the appeal on the additional grounds that (i) the judge ought to have rejected the article 5(1) claim as being wrong irrespective of the decision in Krasniqi; and (ii) the judge ought to have refused the appellant’s application to adduce evidence that his conditions of detention were unduly harsh. Both of these points had been argued by the respondent before the judge.
  5. The appellant opposed the application for an extension of time. Master Meacher rightly treated the application for an extension of time as one that fell to be determined in accordance with the principles stated in  Denton  v TH White [2014] EWCA Civ 906, [2014] 1 WLR 3926: see Salford Estates (No 2) v Altomart [2015] 1 WLR 1825.
  6. Master Meacher reasoned as follows. Although the delay in filing the respondent’s notice was substantial, it was not likely to have any impact on the course of the proceedings or cause undue prejudice to the appellant. The delay was, therefore, not “serious or substantial in the sense in which those expressions were used in  Denton “. The reasons given by the respondent for the delay were mainly pressure of work on counsel and the need for the respondent to consider her position carefully in this significant appeal. Master Meacher said that these reasons were “inadequate”. Finally, she said that she had to consider the circumstances of the case generally. There had been a clear breach of the time limit set by the rules. But it was no part of the courts’ function to impose sanctions merely for punitive purposes. The hearing date of the appeal would not be jeopardised by granting the extension of time. Of particular weight was the fact that the issues raised in the respondent’s notice constituted “by far the bulk of her case in this appeal”; it was a significant appeal; and it was in the public interest for the court to consider the points raised in the respondent’s notice.
  7. She concluded by saying that, although she was persuaded to grant the extension of time, the delay was “excessively long and no sufficient excuse had been provided for the failure to comply with the rules. The delay had put the appellant to expense. The respondent should pay the appellant’s costs on the indemnity basis”.
  8. The respondent seeks a reconsideration of Master Meacher’s decision under CPR 52.16(6). The case advanced by Mr Roe is as follows. No reasonable litigant in the position of the appellant would have opposed the respondent’s application for an extension of time for filing the respondent’s notice. First, there never was any possibility of the time-table for the appeal being disrupted or the appellant being prejudiced by the delay in filing the respondent’s notice. Secondly, it is difficult to see how the appeal could sensibly have proceeded if permission had been refused. That is because, if the appellant had succeeded in persuading the court that the judge was wrong to think that he was constrained by Krasniqi, the court would have been reluctant to declare that the appellant’s detention in a prison was a violation of article 5(1) solely on the basis that it was bound to agree with Jay J because the respondent’s notice was late.
  9. Mr Roe submits that it was obvious that an extension of time was appropriate in this case. A reasonable and cooperative litigant in the position of the appellant would have consented to the application. Instead, the appellant embarked on satellite litigation to try to take tactical advantage of the respondent’s default. Mr Roe also complains that the appellant’s written submissions were so worded as to necessitate a detailed and time-consuming answer from the respondent. In short, the appellant did not behave reasonably. This is illustrated by the fact that he requested that, if the court extended time for the respondent’s notice, it should order the respondent to pay the costs of the entire appeal, win or lose, on the indemnity basis.
  10. For these reasons, Mr Roe submits that the costs of and occasioned by the application for an extension of time (save for the respondent’s own costs of making the application) should be paid by the appellant on the standard basis in any event. This follows from the fact that the appellant behaved unreasonably and opportunistically in forcing the respondent to engage in a contested application and from the principle that:
“[h]eavy costs sanctions should…… be imposed on parties who behave unreasonably in refusing to agree extensions of time”:  Denton  at para 43.
  1. Mr Denholm on behalf of the appellant seeks to uphold the decision of Master Meacher for the reasons that she gave. He makes the point that the appellant would not have objected to further time for the respondent’s notice to take account of the late skeleton argument. Any reasonable further extension sought in advance with an appropriate explanation would have been agreed. But no request for a further extension was made. He submits that, in view of the long and largely unexplained delay on the respondent’s part and the narrow central issue prior to the respondent’s notice (the proper bounds of Krasniqi), it was not so obvious that time would be extended by the court that it was improper to resist the application.
  2. Mr Denholm submits that the appellant’s delay in lodging his skeleton argument was not comparable with the respondent’s delay in lodging its notice. The appellant sought and was granted extensions of time and produced the skeleton argument within the further period agreed by the respondent and granted by the court; whereas the respondent made no attempt to update the appellant’s advisers or the court as to her position.
Conclusion
  1. At para 43 in  Denton , this court said that parties should not “adopt an unco-operative attitude in unreasonably refusing to agree extensions of time and in unreasonably opposing applications for relief from sanctions”. It added: “it is unacceptable for a party to try to take advantage of a minor inadvertent error….”. I would emphasise the words “unreasonably” and “minor inadvertent”. A party is not required to agree to an extension of time in every case where the extension will not disrupt the time-table for the appeal or will not cause him to suffer prejudice. If the position were otherwise, the court would lose control of the management of the litigation.
  2. In determining whether to grant an extension of time for filing a respondent’s notice, the court should apply the three stage approach set out in  Denton . This is precisely what Master Meacher did in the present case. There is a further consideration which is peculiar to respondents’ notices. If a respondent’s notice raises an issue which goes to the heart of the appeal, the court will usually be reluctant to prevent the respondent from raising it, unless to do so would disrupt the appeal or cause real prejudice to the appellant. The court will want to decide the appeal on a proper consideration of all relevant issues. This is particularly important where the appeal raises a point of law which may have implications for other cases.
  3. Master Meacher was right to recognise that this consideration was relevant in the present case. As she said, it was in the public interest that the points raised in the respondent’s notice were considered by this court (as they have been). In these circumstances, and in view of the fact that the introduction of the issues raised by the respondent’s notice would not disrupt the appeal or cause prejudice to the appellant, she was right to grant the extension of time sought by the respondent.
  4. On the other hand, the delay was substantial and unjustified. The case did not fall within the ambit of para 43 of  Denton  i.e. the appellant was not unreasonably seeking to take advantage of a minor error on the part of the respondent. Master Meacher rightly applied what this court said at para 21 in Altomart and asked whether the respondent should be granted an indulgence or whether “the application should be refused in the interests of encouraging more rigorous compliance with the requirements of the rules and promoting a more disciplined approach to litigation generally”.
  5. In my view, her decision struck the right balance on the facts of this case. I agree with it.

The short judgment of Lord Justice McCombe is also telling.

  1. As for the costs of the Respondent’s Notice, I agree with the Master of the Rolls that the Master’s decision was correct. In this context, I would refer to the judgments in this court in R (Sabir) v Secretary of State for the Home Department [2015] EWCA Civ 1173 (18 November 2015) paragraphs 26 and 27 in which it was noted that concern has arisen as to a pattern of delays on the part of this particular respondent in complying with the rules relating to the time for filing of respondents’ notices. I said there, in a judgment with which the Master of the Rolls and Davis LJ agreed, that the court does not view favourably the type of relaxed approach to the timing of the submission of Respondents’ Notices that was adopted in that case and in this case. For this reason, in addition to the reasons given by the Master of the Rolls in paragraphs 68 to 84 above, I agree that the Master struck the right balance in the present case by the order that she made.

RELATED POSTS

Most of the important decision relating to the Denton criteria and relief from sanctions are considered in the Sanctions: Case Watch section of this blog.

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