England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION (PLANNING COURT)
HER HONOUR JUDGE ALICE ROBINSON
SITTING AS A DEPUTY HIGH COURT JUDGE
[2016] EWHC 2484 (Admin)

		Royal Courts of Justice Strand, London, WC2A 2LL
		06/06/2017

Lord Justice Hickinbottom:

1. On 10 February 2016, an Inspector on behalf of the Secretary of State dismissed an appeal by the Applicant John Noel Croke against the decision of the Second Defendant local planning authority not to determine an application for planning permission for alterations and extension to existing buildings at the Grange Barns, Church Road, Ickford, Aylesbury, Buckinghamshire.
2. The Inspector's decision fell within the scope of section 288 of the Town & Country Planning Act 1990, which provides that a person aggrieved by a decision of Secretary of the State may question the validity of the decision by making an application to the High Court. Section 288(4A) provides that an application requires the leave of the High Court. Sub-section (4B) provides that an application for leave for these purposes "must be made before the end of the period of 6 weeks beginning with the day after … the date on which the action is taken [i.e. in this case, the date of the Inspector's decision]".
3. Any such application is made under CPR Part 8. Paragraph 4.1(1) of CPR PD 8 deals with issuing a Part 8 claim, by importing the relevant provisions of CPR Part 7 including CPR PD7A. Paragraph 5 of CPR PD 7A deals with starting proceedings; and para 5.1 of that practice direction states:

"5.1. Proceedings are started when the court issues a claim form at the request of the claimant… but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is 'brought' for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date."

4. It is uncontroversial that, for the purposes of Section 288(4A) of the 1990 Act, time starts to run on the day after the date of the decision letter, and it expires at midnight on the forty-second day including weekends or bank holidays. The time limit is absolute and jurisdictional, in the sense that, subject to one caveat (see paragraphs 16-17 below), it cannot be extended. It is equally uncontroversial that, in this case, the six-week time limit for bringing a challenge under section 288 ended on Wednesday 23 March 2016.
5. The Applicant, who is acting in person, wished to challenge the Inspector's decision. He proposed to do so by issuing a section 288 claim in the Administrative Court Office at the Royal Courts of Justice, in person, on 23 March 2016. However, that day, he missed his train. Therefore, he emailed the relevant documents to a friend, Mr Miller, who was apparently located only a few minutes from the court; and he asked him to file the claim. It is the Applicant's case, accepted by the judge below for the purposes of the application before her and by Mr Mills for the Secretary of State today, that Mr Miller arrived at the Royal Courts of Justice at 4.25pm; but, although the advertised closing time for the court was 4.30pm, he was refused entry at the main front entrance of the building, the security guard there informing Mr Miller that the counters were closed.
6. The following day, Thursday 24 March, the Applicant personally attended the Administrative Court Office, where he arrived at 3.30pm. It was Maundy Thursday and, for the court office, the last working day before the Easter break. Due to the volume of people in the queue, he was not seen until about 5pm, when he was informed by a member of staff that he had used an out-of-date claim form, and he would need to complete a different form. He was given a copy of the new form, and he asked if he could complete it there and then. He was told that he would have to return the next working day. The following day was Good Friday, and the next day upon which the court office was open was Tuesday 29 March. The Applicant attended the Administrative Court Office that day, and filed the claim.
7. The Secretary of State applied to strike out the claim on the ground that it was outside the six-week statutory time limit, and the court had no jurisdiction to entertain it. On 11 August 2016, on the papers, Ouseley J refused leave to proceed, on the basis that the claim was out-of-time, and so the court had no jurisdiction to hear it.
8. The Applicant renewed the application, which was heard by Her Honour Judge Alice Robinson sitting as a Deputy High Court Judge. Before the Deputy Judge, the Applicant submitted that, where a court is not functioning, it is not "accessible"; and, where a court is not accessible (at least during the normal working day), time is automatically extended to the next working day. In this case, the court was not functioning for the period 4.25-4.30pm on 23 March 2016; and time was therefore extended to the next working day, 24 March. That day the court was again not functioning, because, he submitted (relying on cases such as St Helens Metropolitan Borough Council v Barnes [2006] EWCA Civ 1372), the court office was bound to issue the claim form as presented to it; and failed to function properly in refusing to do so. Time was therefore automatically extended to the next working day, Tuesday 29 March – when the claim was in fact issued. It was, he submitted, thus issued in time.
9. In her judgment of 11 October 2016, the Deputy Judge rejected that submission. She held that litigants who are subject to strict time limits must ensure that they attend court in good time, so that their attempts to issue proceedings were not thwarted by unexpected problems, such as security procedures; and, on the facts of this case, time expired on 23 March 2016. It was, in her view, unnecessary to consider what happened on 24 March 2016.
10. The Applicant now seeks permission to appeal against that order.
11. As I have indicated, it is uncontroversial that the six-week period ended on 23 March 2016, and the claim form was not filed until 29 March 2016. On the face of it, it therefore seems that the claim was issued out-of-time.
12. However, as before the Deputy Judge, the Applicant, relying upon such cases as Pritam Kaur v S Russell & Sons Ltd [1973] QB 336, Nottingham City Council v Calverton Parish Council [2015] EWHC 503 (Admin) and Yadly Marketing Co Ltd v Secretary of State for the Home Department [2016] EWCA Civ 1143, contends that the claim was brought in time. Those cases all concern circumstances in which a time limit for doing something at court expires on a Sunday, Bank Holiday or other "dies non" on which the court is closed for the day, days of business in the High Court being regulated by paragraph 2 of CPR PD 2A. In those circumstances, the courts have held that Parliament intended the time limit to expire only on the next working day (which I shall refer to as "the Kaur principle").
13. Neither the Applicant nor Mr Mills has found any case which deals with the circumstances of this case, in which the court office was open on the relevant day, but not open for the whole of "normal working hours" on that day as set out on the web and, in mandatory terms, in paragraph 2.1(2)(a) of CPR PD2A under which the hours which the offices of the senior courts at the Royal Courts of Justice "will be open to the public" are from 10am to 4.30pm. The Applicant points to the observation of Lord Neuberger of Abbotsbury in Mucelli v Government of Albania [2009] UKHL 2 at [85], in which, in speaking of where a court office is closed "even if only for a few hours" before midnight, he said that that was insufficient to extend time to the next working day "at least where the office in question is open during normal hours". On the other hand, in Yadly Marketing at [35], Beatson LJ referred to Judge Robinson's comments in this case to the effect that the Kaur principle did not apply when the court was busy and staff were not able to attend to an individual before the end of the working day" without adverse comment. But none of these observations was more than an obiter dictum, nor more than oblique assistance. There appear to be no authorities on the point of whether, and in what circumstances, the Kaur principle extends to a case where the court is closed, or not otherwise functioning, for less than the whole of the final day on which a claim must be issued or "made".
14. The Applicant submits that it should apply when the court is not functioning for part of the relevant day, and at least not functioning for the period running up to the time when the court would normally close; and, in his case, it should apply to both 23 March (when Mr Miller was barred access to the court building in the circumstances I have described, in circumstances in which, in practice, if he had got through the door of the Administrative Court Office by 4.30pm, he would have been served) and 24 March (when the court staff failed to issue his claim as, arguably, they ought to have done). The 24 March, of course, potentially raises different issues, such as whether the claim was "made" in the circumstances I have described; and, if not, the basis for any "extension" to the next working day.
15. Having considered the ground of appeal with particular care – and not without some hesitation – I am persuaded that this appeal is arguable, particularly given the absence of authority on this point. It is also noteworthy that this issue affects not just section 288 claims, but a variety of proceedings where there are strict time limits. Therefore, although the Applicant himself accepts that the merits of his particular case may not be the strongest or attract great sympathy, the issue of principle involved does or may have some broader importance.
16. For completion, I should say this. The Kaur principle is dependent upon the intention of Parliament, as the courts have construed it, i.e. that, when a time limit would otherwise have expired on a dies non, Parliament intended that that time should not expire until the next working day. That involves no exercise of discretion on the part of the court.
17. Judge Robinson proceeded on the basis that there was no jurisdiction for the court to extend time. In my view, that is not strictly the case: even where a time limit is strict, there remains a residual jurisdiction in the court to extend time, e.g. to avoid a breach of human rights (see, e.g., Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20, R (Adesina) v Nursing and Midwifery Council [2013] EWCA Civ 818 and Yadly Marketing). However, in this case, the Applicant before me renounced any reliance on such a ground; and, in my view, rightly so. There is no arguable case here for the court extending time in circumstances in which the relevant time limit, as construed in Kaur, has expired.
18. For those reasons, I grant leave, limited to the single ground I have described.
19. Two final points. First, particularly as the Applicant (now, the Appellant) is in person, I should stress that the hurdle at this stage is low: at permission stage, an applicant merely has to persuade the court that an appeal is arguable, or, in other words, has some real prospect of success. In this case, I am persuaded as to that; but that does not mean that the appeal will ultimately succeed. Mr Mills for the Secretary of State, at the invitation of the court, made some telling points. I offer no view on that issue; but, if the appeal is ultimately dismissed, then it is very likely that the Appellant will be ordered to pay the Respondent's reasonable costs. Those are likely to be a significant sum. I do not wish to discourage the Appellant; but, given the costs risk, he should at least consider carefully whether, having obtained permission to appeal, he wishes to proceed with the substantive appeal, and run the risk of an adverse costs order.
20. Second, although the Appellant has made both his written and oral submissions before me lucidly, cogently and well, he will need to consider whether he wishes to be legally represented at the substantive appeal, which involves the true construction of section 288 as a matter of law.