England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Canterbury Combined Court Centre
His Honour Judge Murdoch QC
A00CT399

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/11/2016

Lord Justice Beatson:

I. Introduction and statutory context:

1. The appellant, Yadly Marking Company Limited, appeals the order dated 21 November 2014 made by His Honour Judge Murdoch QC in the County Court at Canterbury striking out its notice of appeal against the imposition of a civil penalty as being out of time. The judge also dismissed the appeal, refused the appellant permission to appeal to this court, and ordered it to pay the costs of the Secretary of State for the Home Department, the respondent. On 31 July 2015 Lady Justice Arden granted the appellant an extension of time and permission to appeal.
2. The appeal concerns the correct approach to the computation of a statutory period for the bringing of an appeal and the circumstances in which the appeal can be considered where it is filed after the number of days specified in the statute. In this case the provision is section 17 of the Immigration and Nationality Act 2006 (“"the 2006 Act”"). That provides for an appeal against a civil penalty imposed on an employer who has employed individuals whose immigration status is irregular or are not permitted to be so employed to be brought within 28 days of a number of specified dates. In this case the last day of the specified period fell on a bank holiday Monday when court offices are closed.
3. The provisions conferring the power to levy a civil penalty on employers who employ persons who do not have the appropriate leave and have not complied with the prescribed monitoring requirements in relation to the employment and to object to such a penalty are in sections 15 and 16 of the 2006 Act. Section 16 (1) – (3) gives an employer served with a civil penalty notice the right to give a notice of objection to the Secretary of State on the ground that he is not liable to the penalty, is excused because he complied with the prescribed requirements, or because the amount of the penalty is too high. Section 16(4) requires the Secretary of State to consider the notice and to cancel the penalty, reduce it, increase it, or determine to take no action. By section 16(5)(c) if the Secretary of State increases the penalty he must issue a new penalty notice under section 15, and by section 16(5)(d) if he reduces the penalty he must notify the objector of the reduced amount.
4. It is only necessary to set out the material parts of section 17(4) and (6) of the 2006 Act. By section 17(4):

“"An appeal must be brought within the period of 28 days beginning with –

(a) the date specified in the penalty notice as the date upon which it is given, or

(b) if the employer gives a notice of objection and the Secretary of State reduces the penalty, the date specified in the notice of reduction as the date upon which it is given, or

(c) if the employer gives a notice of objection and the Secretary of State determines to take no action, the date specified in the notice of that determination as the date upon which it is given.”"

In this case the material provision is section 17(4)(b). Section 17(6) provides that:

“"Where the employer has his principal place of business in England and Wales”", “"the court”" means “"the county court”".

Section 17(4) of the 2006 Act was amended by the Immigration Act 2014, but the amendments do not affect this appeal because the civil penalty in this case was imposed before 28 July 2014.

II The factual and procedural background

5. On 21 January 2014 immigration officers visited the appellant’'s premises and the Home Office’'s Civil Penalty Compliance team notified it of a potential liability in respect of six employees who were stated to be over-stayers. On 21 March 2014 the Civil Penalty Compliance team, acting on behalf of the Secretary of State, issued a civil penalty notice for a total penalty of £30,000, listing six employees who were working without appropriate leave. The notice stated that any objection to the penalty and any appeal against it had to be received or brought before 21 April 2014.
6. On 11 April 2014 the appellant filed a notice of objection and, on 25 April, the Secretary of State issued an amended notification of liability reducing the total penalty to £20,000. She did so because she accepted that the appellant was responsible for employing only 5 workers and because she reduced the penalty for 2 of them to £2,500 each. A covering letter gave reasons for the decisions but only dealt with one of the two individuals whose penalty was reduced. It stated that the penalty of that person was reduced because it was accepted that initial checks undertaken by the appellant about that person were a partial document check. The penalty notice stated that it was sent on 25 April 2014, was deemed to be given on 29 April 2014, and that any appeal had to be brought on or before 26 May 2014. In fact, 26 May 2014 was a bank holiday Monday when court offices were closed.
7. Before dealing with the appellant’'s attempt to lodge its notice of appeal, I refer to a letter dated 21 May 2014 in which the appellant’'s solicitors made further representations about issues that they argued the Secretary of State had failed to take account in her decision letter dated 25 April 2014. The solicitors stated that they were instructed to file an appeal by the deadline if they did not receive a satisfactory response by close of business on Monday 26 May 2014. They did not receive a reply to the letter dated 21 May 2014 until long after the expiry of the time for appealing. The reply to that letter was in a letter from the Civil Penalty Enforcement Team dated 1 July 2014.
8. The summary of the facts in the next two paragraphs is largely taken from [5], [6] and [12] of the judgment below. As the judge at [6] said, there was no witness statement from the appellant’'s director and he proceeded on the basis of what Mr Emezie who appeared on behalf of the appellant below, said about what occurred. During the hearing before us, Mr Emezie, informed us of what he had said to the judge. I refer to the evidential position below.
9. After sending the letter dated 21 May 2014, it appears that the appellant and its solicitors took no further steps to file the appeal before 26 May. As that day was a bank holiday when court offices were closed it was not able to file its appeal. But on the next morning, 27 May 2014, on the advice of Mr Emezie, the appellant’'s managing director attempted to issue the appeal at the County Court at Edmonton. The Court, however, refused to accept the appeal and an official informed the managing director that the appropriate place to issue it would be an Immigration Tribunal. This was a mistake. As I have stated, section 17(6) of the 2006 Act clearly provides that employers with their principal place of business in England and Wales were to bring appeals in the county court. The appellant made a further attempt to issue the appeal at the County Court at Edmonton on 28 May but was again refused.
10. The appellant’'s solicitors then posted the Appellant’'s Notice to the Canterbury County Court where the papers arrived and the appeal was lodged on 30 May 2014. The box in section 5 indicating that the Appellant’'s Notice was lodged with the Court in time was ticked. No application was made for an extension of time for filing and no reasons for not being in time were given. On 1 July 2014 HHJ Scarratt of his own motion issued directions in the case including listing the appeal hearing for 21 November 2014. In an Application Notice dated 6 November 2014 the Secretary of State applied for the Appellant’'s Notice to be struck out as out of time. She did so on the ground that there was no power to extend time, either in the 2006 Act or in the Rules of Court, and also submitted there were no exceptional circumstances, and that the court had no jurisdiction to hear the appeal.

III The judgment below

11. The learned judge accepted the Secretary of State’'s submission that the notice be struck out as out of time. He referred to section 17(4) of the 2006 Act and to the fact that there is no provision in the statute for the extension of time permitted for appealing: see [3] and [4]. He also referred to the decision of the Supreme Court in four extradition appeals, known by the name of the appellant in the lead case, Pomiechowski v. The District Court of Legnica Poland [2012] UKSC 20 reported at [2012] 1WLR 1604. He stated that it was plain from that case and a number of authorities stemming from it “"that there is discretion pursuant to the provisions of the Human Rights Act 1998 to allow appeals to be brought out of time in cases where a litigant personally has done all that he can to bring and notify the appeal timeously. It requires the establishment of exceptional circumstances.”" Later in his judgment, at [12], he referred to the decision of this court in R (Adesina) v Nursery and Midwifery Council [2013] EWCA Civ 818 reported at [2013] 1WLR 3156.
12. The judge stated (at [7]) that the 28 day period fixed by the 2006 Act expired on Monday 26 May 2014. He then considered CPR 2.8(5) which provides that where a period specified by the Rules or a Practice Direction or any judgment or court order ends on a day at which the court office is closed “"the act shall be in time if done on the next day on which the court office is open”". At [8]-[11], he stated that CPR 2.8(5) does not apply to statutory time limits.
13. The judge also considered (see [12]) that the delay between the rebuff received in the County Court at Edmonton on 27 May and the papers arriving at Canterbury County Court on 30 May was an indication that the appellant had not done all that it could to bring the appeal within the prescribed time limit. Accordingly, this case was not one in which there were exceptional circumstances justifying an extension of time.
14. After hearing further submissions, he stated (at [13] – [14]) that he was satisfied that the statutory scheme only allowed one objection. and that the alleged second objection in the letter dated 21 May 2014 was not an objection within the meaning of section 16. He also stated that in any event it would have been outside the time limit for the giving of an objection.

IV The grounds of appeal

15. There were originally 4 grounds of appeal but only the first three were pursued by Mr Khan. The fourth ground of appeal was that the judge’'s decision and order denied the appellant access to justice and a fair hearing contrary to Article 6 of the ECHR. Mr Arfan Khan, who led for the appellant, was right not to pursue it. I do not consider that ground 4 added anything to the other grounds, and it is well established that the right of access to a court is not absolute and that the existence and enforcement of appropriate time limits is consistent with Article 6: see e.g. Stubbings v UK (1997) 23 EHRR 213 at [54] – [55].
16. Ground 1: The judge erred in ruling that the last day for filing the Appellant’'s Notice was 26 May. Because the Monday was a public holiday the deadline for appealing was extended to Tuesday 27 May 2014. In his skeleton argument and speaking note Mr Khan relied on a number of decisions, in particular that of this court in Pritam Kaur v S Russell and Sons Ltd [1973] 1 QB 336, Mucelli v Government of Albania [2009] UKHL 2 reported at [2009] 1 WLR 276 and Pomiechowski v District Court of Legnica (Poland) to which I have referred. He relied in particular on [39] of Lord Mance’'s judgment in Pomiechowski, with which Lord Phillips, Lord Kerr and Lord Wilson agreed. Mr Khan argued that these decisions show that in the case of a statutory limit such as that in section 17(4) of the 2006 Act, where the appeal cannot be filed on the day that appears to be the last day specified by the statute because it is a public holiday and the court is closed, Parliament must have intended that the appeal can be filed on the next working day.
17. Ground 2: The judge erred in concluding that in this case there were no exceptional circumstances that warranted the exercise of discretion to extend time. Mr Khan submitted that the appellant had done all that it could to bring the appeal within time by seeking to file it on two occasions at Edmonton County Court and then posting it to Canterbury County Court. The fact that the time for filing the appeal ended on a public holiday did not mean that the notice should have been filed on Friday 23 May 2014 because that would have cut down a statutory time limit, and the Edmonton County Court’'s error constituted exceptional circumstances.
18. Ground 3: The judge misdirected himself in holding that sections 16 and 17 of the 2006 Act only allow an appellant to raise an objection once so that the second objection raised by the appellant prior to the deadline in its letter dated 21 May neither extended the time for appealing nor constituted an exceptional circumstance. In Mr Emezie’'s skeleton argument and Mr Khan’'s speaking note it is submitted on behalf of the appellant that the letter dated 1 July 2014 rejecting the second notice of objection dated 21 May 2014 proceeded on the basis that it is permissible to raise a second objection. It is also submitted that, if the judge was correct, it would mean that no further objection is permitted whatever its merits. It was argued that this would preclude a second objection even where it is clear from the second determination notice that the Secretary of State has got the facts wholly wrong or failed to have regard to a relevant factor or change in the law.

V Discussion

Ground one:

19. My starting point in the consideration of ground 1 is the decision of this Court in Pritam Kaur v S Russell & Sons [1973] QB 336, which was not considered below. Pritam Kaur’'s case concerned a statutory limitation period of three years for a personal injuries action. The limitation period expired on a Saturday when the court offices were closed. The writ was taken to the district registry and issued on the Monday. The Court held that it was issued in time. Lord Denning MR stated at 349 that:

“"… [W]hen a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when the time expires, then, if it turns out in any particular case that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open”".

20. Megarry J stated at 353:

“"Parliament must also be taken to contemplate that there will be days and short periods during which it will not be possible to issue a writ because under the Rules of Court the offices of the court will be closed. If, then, the period expires when the offices are closed, is the period in effect to be curtailed by the days of closing, or is it to be extended? … An arbitrary period has to be fixed in order to make the [Limitation] Act certain and workable; but in applying that period to cases where the courts are shut on the last day, the policy of the statute seems better effectuated by allowing an extra day or two than by subtracting a day or two.”"

Megarry J continued:

“"The difference between three years and three years and a day cannot normally make much difference to a defendant; it may be disastrous to a plaintiff.”"

He concluded (at 356) that “"if the act to be done by the person is one for which some action by the court is requisite, such as issuing a writ, and it is impossible to do that act on the last day of the period because the office of the court is closed for the whole of that day, the period must be construed as ending not on that day but at the expiration of the next day upon which the offices of the court are open and it becomes possible to do the act.”"

21. The approach in Pritam Kaur’'s case was adopted by this Court in Aadan v Brent LBC [2000] 32 H.L.R. 848. The context was the requirement in section 204(2) of the Housing Act 1996 that an appeal against a decision by a housing authority to refer an applicant to another authority must be brought within 21 days of the applicant being notified of the decision. In Aadan’'s case the 21 day period expired on a Saturday when the court office was closed and the question was whether, in those circumstances, the period was to be regarded as ending on the day when the office was next open. Order 2 Rule 4 of the County Court Rules 1981 provided that “"any reference to filing a document is to filing it in the court office by delivery to the proper officer for entry by him in the records of the court”". Chadwick LJ stated (at 854) that posting a document to the court office does not amount to filing it by delivery to the proper officer unless the document is actually received, and that “"delivery”" requires some element of reception. That, he concluded, meant that the filing of a document in the county court could only be done when the county court office is open.
22. It was observed by Sir Christopher Staughton in Aadan’'s case that it does not follow that other statutory time limits must be interpreted in the same way. Despite this caution, Lord Denning’'s approach has continued to be followed. Before discussing its scope, I refer to some of the other cases.
23. Mucelli v Government of Albania [2009] UKHL 2 reported at [2009] 1 WLR 276 concerned time limits in the Extradition Act 2003 governing appeals to the High Court against an order of a District Judge permitting extradition. Sections 26(4) and 103(9) provide that ""Notice of an appeal … must be given in accordance with rules of court before the end of the permitted period ….”". The periods under these provisions were respectively 7 and 14 days “"starting with the day on which the order is made"", and the rules provided that “"the appellant''s notice must be filed and served before the expiry of”" respectively 7 and 14 days.
24. Lord Neuberger considered the position where it is impossible to give notice on, or during the final part of the last day, for instance, in relation to filing where the court office is closed because it is Christmas Day or another bank holiday. While holding that it is not open to the court to extend time without a statutory basis, he stated (at [84]) that where the requisite office is closed during the whole of the last day “"the notice will be validly filed or served if it is given at any time during the first succeeding day on which the office is open (i.e. the next business day)”". He stated that if the final day for giving a notice of appeal would otherwise be such a day, “"filing or service”" can validly be effected on the next business day. He cited Pritam Kaur’'s case and adopted the same approach. Although the time limit applied to “"filing and serving”", his Lordship’'s comments relate to “"filing or service”". It thus appears that, subject always to the particular statutory context and the scope of that approach, it can be said that Lord Denning’'s approach reflects what can be described as a “"general rule”" or the “"default position”".
25. Recently, in Nottingham City Council v Calverton Parish Council [2015] EWHC 503 (Admin), in the context of section 113 of the Planning and Compulsory Purchase Act 2004, Lewis J stated at [33] that:

“"where a statutory provision provides that proceedings must be brought no later than the end of a specified period, and the bringing of proceedings requires that the court office be functioning, and the last day of the prescribed period falls on a day when the court office is closed, then the statutory provision is to be interpreted as permitting the proceedings to be brought on the next day when the court office is open.”"

26. Mr Chegwidden submitted that section 17 neither provides for, nor guarantees, a minimum of 28 days for an appellant to file an appeal. His written submissions pointed to the fact that courts have repeatedly so held when construing similar statutory language: see Hinde v Rugby BC [2011] EWHC 3684 (Admin) at [23] and [35] in relation to section 113(4) of the Planning and Compulsory Purchase Act 2004, and Mucelli’'s case at [86] – [90]. It follows that there is no basis, statutory or otherwise, to permit an extension because the last day of the 28 day period fell on a public holiday. In the case of statutory appeals where the statute prescribes the period for bringing an appeal, he argued that this is also seen from CPR PD 52D 3.5 which states that unless the statute otherwise provides the appeal court may not extend the period prescribed by the statute. He also submitted that CPR Rule 2.8(5) does not apply to time periods fixed by statute.
27. I accept that it is not open to the court to extend the time limit in the statute. The question is how the statutory language is to be construed where the last day of the specified number of days happens to fall on a public holiday. I also accept that CPR 2.8(5) is of no assistance to the appellant for the reasons given by the learned judge.
28. Mr Chegwidden’'s principal submission was that the approach in Pritam Kaur and Aadan’'s cases of construing the statute as granting an extra day in these circumstances only applies if the act can only be done when the court is open or where the act is one that has to be done by the court. He argued that this was not such a case. He relied on the reference by Lord Denning MR at 348 to an act which “"can only be done if the court office is open on the day when the time has expired”"; Lord Denning’'s citation of the reference by Erle CJ in Hughes v Griffiths (1862) 13 CBNS 324 at 333 to the position “"where the act is to be done by the court”"; and Megarry J’'s reference (at 356) to the need for the act to be one “"for which some action by the court is requisite”". The focus of his submission was the distinction referred to by Jonathan Parker and Ward LJJ in Van Aken v Camden LBC [2002] EWCA Civ 1724, reported at [2003] 1WLR 684, between interactions with the court system which are “"unilateral”" acts and those which are “"transactional”". The former are acts or mechanisms involving only one party such as “"mere delivery”". The latter require some element of activity on the part of the receiving party; in this context the court. He argued that only where the act or mechanism is “"transactional”" will the approach based on Pritam Kaur apply so that the period specified in the statute will be construed as ending on the day following a public holiday where the court is closed.
29. Van Aken’'s case, like Aadan’'s case, concerned the 21 day limitation period in section 204(2) of the Housing Act 1996. But, whereas Aadan’'s case concerned the requirement in Order 2 Rule 4 of the County Court Rules 1981 quoted above which refers to “"delivery to the proper officer for entry by him in the records of the court”", Van Aken’'s case concerned CPR 2.3(1) which provides that “"‘'filing’', in relation to a document, means delivering it, by post or otherwise to the Court office…”". On the basis that “"filing”" a document was a unilateral act, it was held that a solicitor, who arrived at a county court office after it had closed for business on the last day of a 21 day limitation period and posted the notice through the letterbox, had filed the document as defined by CPR 2.3(1) on the day it was posted through the letterbox so that the appeal had been brought within time. This was so notwithstanding the statement in that rule that “"‘'filing’' means delivering a document by post or otherwise to the court office…”". Jonathan Parker LJ at [38] considered that the submission that there was a distinction between the court office itself and the court building so that merely posting the documents in the letterbox may not be sufficient was unattractive. He rejected this distinction at [48] noting that “"the letterbox in the instant case was the designated means of communicating with the court office out of hours”". He stated ([49]) that the Appellant’'s Notice was “"filed”" when it was posted through the letterbox of the county court.
30. Mr Chegwidden submitted that regarding the filing requirement as a unilateral act and outwith the approach in Pritam Kaur and Aadan’'s case because it could be completed without action by court staff had the advantage that individuals would be able to file documents after court offices are closed by posting them through the letterbox or sliding them under the door. They would thus be able to secure the benefit of the entire 7 or 14 day statutory limitation period.
31. The submission that a person should be entitled to secure the benefit of the entire statutory limitation period has its attractions and may explain the approach in Van Aken’'s case where there was no dispute that the document had arrived before the midnight of the last day of the statutory limitation period. But the effect of the submission in the present case would not do this. It would either cut down the statutory limitation period or require appellants to take unusual steps on days where the court office is closed to secure the full benefit of the period. It does not follow from Van Aken’'s case that, where court offices are closed for a public holiday on the last day of the period, a person should be required to find a court building where it is possible to put the document through the letterbox or to slide it under the door of the court.
32. The guidance notes on completing form N161 (the Appellant’'s Notice) do not suggest that documents should or may be put through a letter box or under a door. They state, under the heading of “"filing your completed notice and documents”", that the appellant should “"send or take the notice and copies of all other documents to the appeal court office with the appropriate fee”" (emphasis added). Encouraging or requiring the methods of filing documents suggested by Mr Chegwidden would be productive of uncertainty. There would be numerous practical difficulties, as not every court building has a letterbox and, in these days of heightened security, it seems probable that some are sealed up. Mr Chegwidden’'s suggestion that filing could be effected by slipping the documents under a door depends on whether there is any gap in the door and its extent, and the bulkiness of the documents. It also risks the documents being mislaid with all the difficulties of proof that will then confront the litigant.
33. Mr Chegwidden made his submission without any evidence about the layout and arrangements at the Edmonton County Court: whether it in fact had a working postbox accessible when the court office was closed; and whether the design of the doors to the building would have allowed the documents to be slid under them. In contrast, in Van Aken, it was accepted that the letterbox was the designated means of communicating with the court office out of hours [48]. There was no evidence before us or indeed before the judge from which it could be inferred that on a bank holiday these methods would in fact have been possible at the Edmonton County Court or that, if there was a working letterbox, it was the designated means of communicating with the court office out of hours.
34. More fundamentally, the approach in the Pritam Kaur line of cases is based on the presumed intention of Parliament. I do not consider that Parliament would have intended an approach to depend on whether there is in fact a means of getting a document into a particular court building when it is closed for business for the entire day. Notwithstanding what Jonathan Parker LJ stated in Van Aken’'s case at [38], see above, I consider that there is a sensible distinction between the court office itself, which is referred to in CPR 2.3(1), and the court building. There is a difference between leaving the documents in a drop box in the court office when they are within the curtilage of the office and under the supervision of appropriate staff and the other methods canvassed by Mr Chegwidden and their consequent uncertainties and difficulties of proof.
35. It is clear both from what Lord Neuberger said at [83]-[85] of Mucelli and from Pritam Kaur and Aadan’'s case themselves that the Pritam Kaur approach only applies where the recipient’'s office is closed during the whole of the last day. The approach would in any event not have been applicable in Van Aken’'s case where the solicitor arrived on a day where the office had been open but after it closed for business. Moreover, Mr Chegwidden’'s suggestion that his approach has the advantage of enabling a person to enjoy the statutory limitation period in full, until the 59^th minute of the eleventh hour in every case appears inconsistent with what Lord Neuberger stated at [85] of his speech in Mucelli’'s case. Lord Neuberger said that the proposition that there is no reason to deprive a person of his full statutory 7 or 14 days does not mean that, on a day where the office in question is open during normal hours, a person has cause for complaint if he cannot file the document at the court office outside normal office hours. See also Croke v Secretary of State for Communities and Local Government [2016] EWHC 2484 (Admin), albeit in respect of the filing of a claim form rather than a Notice of Appeal. It was stated that the approach in Pritam Kaur did not apply where a person was not permitted access to the building after the counters had closed for the day, and it was suggested that would also be the position where a court was busy and staff were not able to attend to an individual before the end of any working day.
36. For these reasons, I consider that what is required is delivery of the document to the court office itself, which is not possible where the office is closed for the entire last day of the statutory limitation period. I reject the distinctions which are suggested in Mr Chegwidden’'s written and oral submissions. He did not point to anything in the particular context of section 17 of the 2006 Act which suggests that the general approach which recognises that where a fixed statutory time period ends on a day which is a public holiday or on which the relevant public office is closed for the whole day should not apply to it. I therefore conclude that the approach in Pritam Kaur’'s case is applicable to the facts of this case and the judge erred in concluding that the period in this case ended on the bank holiday Monday, 26 May 2014.

Ground two: were there exceptional circumstances justifying an extension of time in this case?

37. In Pomiechowski v. The District Court of Legnica Poland, to which I have referred, Lord Mance stated at [39] that the court has a discretion in exceptional circumstances to extend time for filing and service beyond the period specified in the relevant statute where the statute “"would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under Article 6.1”". He stated that the court must have the power in any individual case (a) to determine whether the operation of the time limits would have this effect and, if and to the extent that it would do so, (b) to hear an appeal out of time when “"a litigant personally has done all he can to bring and notify timeously”".
38. It is clear from the decision of this court in Adesina v Nursing & Midwifery Council [2013] EWCA Civ 818, reported at [2013] 1 WLR 3156, that the scope for departure from a 28 day time limit such as that in section 17 of the 2006 Act is “"extremely narrow”": see [18] and see also [15] per Maurice Kay LJ. The example given by Maurice Kay LJ is a situation in which by reason of illness a person is in blameless ignorance of the fact that time was running for the whole of the 28 day period. In Pomiechowski’'s case Lord Mance, considering the significantly shorter time limits in the Extradition Act 2003, gave as examples a negligent solicitor failing to file notice of appeal within the permitted period, or where a prison riot or a defendant’'s collapse and illness following receipt of information about an extradition decision has prevented him giving any instructions to lodge Notice of Appeal: see [17] and [34]. While those are scenarios in which the individual concerned was incapacitated throughout the period (in the case of the solicitor’'s negligence by reason of a third party’'s act) it is clear from the authorities to which I have referred, in particular Pritam Kaur and Mucelli’'s case at [81], that a person is entitled to serve notice at the last possible moment and that the period is not to be cut down by bringing it forward. In the present case where the last day is a bank holiday Monday, it would have to be brought forward by 3 days. I do not accept the proposition that it is only where a person is shut out for the entire period that there can be exceptional circumstances, nor, to be fair, did Mr Chegwidden so contend.
39. With that background I turn to the circumstances of the present case. I have concluded that the appellant was entitled to file its Appellant’'s Notice on the day after the Bank Holiday Monday for the reasons I have given in my consideration of ground 1. It thus attempted to file the Appellant’'s Notice at the Edmonton County Court within what I have concluded is the time limit. It therefore did all it could to appeal within the time limit. The reason for its failure to do so was clearly the error of the court official at the Edmonton County Court and not any failing on its part. The approach in Pritam Kaur’'s case and in particular the statement by Megarry J set out at [20] above that “"the policy of the statute seems better effectuated by allowing an extra day or two than by subtracting a day or two”" means that the person affected cannot be regarded as at fault because he did not file the notice before the expiry of the number of days specified in the statute in these circumstances.
40. The appellant or his advisers can be criticised for stating in the document posted to the Canterbury County Court that the notice was in time and not explaining the circumstances in the appropriate part of the form. But the judge was informed of what had occurred by Mr Emezie and appears to have accepted it. In an ideal world, it would have been better to have evidence as to the reasons for not filing on the 26 May and the two days after that, but the judge was entitled to proceed on the basis of what Mr Emezie had said at the hearing.
41. I have hesitated as to whether the fact that, after two attempts to file at the Edmonton County Court, the appellant, through its solicitor, posted the notice to another county court rather than seeking to file it personally at another court, means that it did not “"do all it could to file timeously”". It was suggested that the appellant or its solicitor should have taken the notice for example to the Central London County Court. I have concluded that, in the particular circumstances of this case, where it had attempted to file the notice personally before the expiry of the period and was rebuffed by the court, and then made a second attempt only to be rebuffed again, the decision of the solicitors to use the post on the following day does not take this case outwith the “"extremely narrow”" scope for departure from the statutory limit pursuant to the general approach in Pritam Kaur’'s case and the other decisions to which I have referred. I am reinforced in taking this view in the light of what emerged during the hearing. We were informed that it was decided to file at the Canterbury County Court because of a Court Service document about appeals such as this which we were shown. The document states that many appeals of this type are dealt with by Canterbury County Court which is familiar with them and that it is believed that the costs of the appeal process are usually lower at Canterbury. Although the document also makes it clear that there is no need to appeal in Canterbury and that there is a county court in most large towns and cities, particularly in view of the appellant’'s experience with the Edmonton County Court it is understandable that it was decided to file in Canterbury and, given the location of the appellant and its solicitor, to do so by post. Accordingly, I have concluded that the appellant did all it could to issue the appeal in time, and that the court’'s error constituted exceptional circumstances justifying an extension of time.

Ground three: time started to run from the second objection under section 16 of the 2006 Act

42. In light of my conclusions on the first two grounds, it is not necessary to consider ground 3, whether it is possible to raise a second objection under section 16. Without deciding this point, I am inclined to the view that it is not possible to raise a second objection.
43. I do not consider that the use of the words “"a notice of objection”" in section 16(2) and “"it”" in section 16(4), upon which the respondent relies, are strong indications since they could relate to any notice received. But the terms of fact that section 16(5) (c) and the contrast with the provision in section 16(5)(d) support the view that section 16 only envisages one objection. Section 16(5) (c) requires the Secretary of State to issue a new penalty notice under section 15 if she increases the penalty, thus enabling an employer to serve a notice of objection under section 16. If more than one objection is permitted in other circumstances, it would not have been necessary to make provision for a new penalty notice where the penalty has been increased. By contrast, section 16(5)(d) provides that, where the Secretary of State reduces the penalty, she is only required to inform the employer who has objected of the reduced amount. The contrast suggests that in such a case the objector is not entitled to raise a second objection. A person who is faced with an increased penalty is thus enabled to raise an objection to the new penalty notice while objectors who are not so faced but consider that the second notice of penalty is flawed in one of the ways suggested by the appellant will be sufficiently protected by having the right to appeal against it, and should exercise that right.

VI. Disposition

44. For the reasons I have given, I would allow the appeal, set aside the order of the judge and remit the matter to the county court to be considered by another judge in the light of this judgment.

Lord Justice Henderson

45. I agree.

Lady Justice Arden

46. I also agree.