LATE SERVICE OF NOTICE OF APPEAL: COUNSEL’S ERROR DOES NOT AMOUNT TO A GOOD REASON

In the judgment today in Turner -v- South Cambridgeshire District Council [2016] EWHC 1017(Admin)Mr Justice Warby considered the Denton guidance in relation to an application to appeal out of time. Among other factors he rejected the idea that an error by counsel could amount to a “good reason” for appealing out of time.

“Counsel’s error cannot amount to a good reason for the two weeks delay…”

THE CASE

The appellant sought to appeal a decision in relation to Council Tax Reduction.  The appeal was lodged two weeks out of time. The relevant time was within two weeks of receipt of the date of written decisions. Counsel informed the appellant that the appeal period was four weeks.

THE JUDGMENT ON RELIEF FROM SANCTIONS

“Relief from sanctions and extension of time
  1. It is clear that Regulation 43 gives the Court a discretion to dismiss an appeal made out of time. The Regulation can be analysed as imposing a time limit which may be extended only if the court in its discretion agrees; or an automatic sanction from which relief must be sought; or as a ground on which the court may in its discretion dismiss an appeal. I do not believe it matters. The general rule is that appeal courts treat an application to extend time for appealing, when brought after the time limit has expired, as equivalent to an application for relief from sanctions under CPR 3.9; the court applies what have become known as the Mitchell/Denton principles. Sayers v Clarke Walker (A firm) [2002] EWCA Civ 645, [2002] 1 WLR 3095; R (Hysaj) v SSHD [2014] EWCA Civ 1633; [2015] 1 WLR 2472. It is common ground that in this case I should adopt that approach, and I agree that is appropriate.
  2. CPR 3.9 provides as follows:-
“Relief from sanctions
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.”
  1. The guidance given in Denton v T H White [2014] EWCA Civ 906, [2014] 1 WLR 3927 is now very familiar. The court said this at [24]:
“…. A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the failure to comply with any rule, practice direction or court order which engages rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate all the circumstances of the case, so as to enable [the court] to deal justly with the application including factors (a) and (b).”
  1. The reference to factors (a) and (b) is a reference to the factors specified in CPR 3.9(1). Here, Mr Turner accepts that the two week and one day delay represents a serious breach, though it is submitted that it is not significant as it has caused no prejudice. The explanation given is an error by Counsel, who wrongly advised that Mr Turner had four weeks to lodge his appeal papers. Counsel’s error cannot amount to a good reason for the two weeks delay. And it does not explain the extra day, of course. As Mr Hanstock points out, no explanation has been offered for that. Mr Turner’s documentation simply stated that he had been told that he needed to seek an extension.
  2. That, however, is not the end of the matter. As the court pointed out in Denton, it is a mistake to think that a serious or significant default for which there is no good reason will inevitably lead to the refusal of relief. The court must always consider all the circumstances, including the two factors specifically identified.
  3. In reaching the conclusion that relief should be refused I have taken account of the plea for clemency advanced on Mr Turner’s behalf. It is submitted that the Council misled the VTE by failing to put all the relevant correspondence before it; that Mr Turner is not personally at fault for the late filing of the papers; that the Council knew well before the deadline that an appeal was in the offing; and that the Council has put in no evidence and shown no prejudice. I do not attach great weight to any of these factors, however. Mr Turner had a full opportunity to present his side of things before the VTE; he must take the consequences of wrong legal advice; there was no need to wait the full four weeks that (in his mind) he was allowed; he failed even to meet that deadline; and prejudice to the opponent is no longer the talisman in this field of decision-making.
  4. I do attach weight to the need to enforce timetabling rules, especially for appeals such as this one which may be brought as of right; to the need to keep matters such as this in proportion; to the fact that the previous history is (as explained below) one of persistent lateness; to the fact that no explanation of the delay was offered until a late stage, and no evidence to explain or excuse it provided until after my prompting at the hearing; and to the fact that this is in at least one sense a second appeal. I also take into account as a significant factor that the appeal, as originally launched, did not raise any arguable point of law. It was, as the Council submits, a thinly disguised attempt to secure a review of the substantive merits of the VTE decision.”

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