England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		5 May 2004

1. MR JUSTICE NEWMAN: I have before me two applications for judicial review brought by the Commissioners of Customs and Excise. In each case HHJ Simpson, at the Crown Court at Maidstone, granted an application by a defendant in a magistrates' court, permission to appeal in respect of condemnation proceedings, in each case many months after the decision appealed against, in each case exercising his discretion to grant an extension of time to appeal against the condemnation orders.
2. For convenience the two applications have been ordered to be heard together because they raise similar considerations concerning the manner in which a Crown Court judge should exercise his discretion when granting permission to an applicant to appeal a magistrates' court order out of time.
3. The interested parties in the two cases are, in the first, Michael Graham, who has been represented by counsel, Mr Peter Harrison. In the other, Mr Gerald McSorley, who has appeared in person.
4. In order to make sense of each application it is necessary to set out the essential facts in connection with each case. First of all the case of Michael Graham.
5. Mr Graham was stopped at the Eastern Docks at Dover on 13th November 2000 by Customs and Excise officers. He was the driver of a Mercedes car and his son Mark was with him in the passenger seat. In the boot of the car were four sacks containing 20 kilos of tobacco and eight boxes containing in total 40,000 cigarettes.
6. The Grahams live in Scotland, in Port Glasgow. At the time it was put to Michael Graham that he had made eight previous trips in the same vehicle and that he had made two on the same day, namely 13th November 2000. In response he said, in reference to the two trips on the same day, that "he went to see if he liked the tunnel". He also said he was on a small income from a charity and had a mobility allowance. He had spent £3,200 on purchasing the cigarettes and he said they were for his personal consumption. The duty on the tobacco and cigarettes in question was £7,376.
7. The Customs and Excise gave notice of seizure under schedule 3 of the Customs and Excise Management Act 1979. These proceedings were served both on Mr Graham and his son Mark and the Mercedes motorcar was seized.
8. About a month later, on 12th November, solicitors for Mr Graham gave notice on his and his son's behalf of a claim. Proceedings were commenced in the Dover Magistrates' Court by complaint on 22nd March 2001 and Mr Graham returned the standard form response to the solicitors stating that he wanted to contest the case and giving dates to avoid. Thereafter there were several adjournments of the case.
9. The hearing, namely the condemnation hearing and the forfeiture proceedings, in essence the condemnation, which is the only matter with which the magistrates are concerned, was listed and fixed, eventually, for 10th January 2002. Neither Mr Graham nor his son were present on 10th January 2002, but there is material in the record, in particular from the magistrates' court and indeed more than that, a finding by the magistrates' court in proceedings which followed subsequently, that both Mr Graham and his son knew that the hearing was to take place on 10th January 2002. At the hearing the goods were condemned, the vehicle was forfeited and Mr Graham was ordered to pay £500 costs.
10. It should be noted, since it is relevant to the exercise of discretion, that the legal effect of an adjudication that goods and vehicles are condemned as forfeit is that it confirms the commissioners' title arising out of the seizure and in particular confers upon them the right to sell a vehicle if it has been involved in the forfeiture. As it happens Mr Graham's vehicle had not been sold but is being used by the Customs and Excise.
11. The next matter to note is that it was not until 20th May 2003, namely some 16 months after the decision of the magistrates' court, that solicitors acting for Mr Graham wrote to the Crown Court at Maidstone asking the Crown Court to decide whether an application for permission to appeal was "worthy of being entertained".
12. HHJ Simpson responded by suggesting that the magistrates should be asked to reopen the case under section 142 of the Magistrates' Court's Act 1980. The magistrates were asked to hear an application under section 142 and they reached a determination to which I shall refer. But it can also be observed that, these proceedings, not being criminal proceedings, it seems very doubtful that the magistrates had any jurisdiction to hear a section 142 application.
13. It was listed and heard on 11th July 2003 and the magistrates refused the application, concluding that there was no material that could lead the Bench to a different conclusion to that of their colleagues in January 2002. Additionally, as appears from a letter which was sent to the Crown Court on 18th July 2003 by Mr Graham's solicitors, the reasons of the magistrates were as follows: (1) that they were satisfied on the information available that Mr Graham was aware of the hearing on 10th January; (2) that there had been an application made by Mr Graham's son to vacate the hearing on 10th January, due to his father being unable to attend as a result of hospital appointments. That this application was refused by the magistrates on 20th December because of a lack of medical evidence to back it up and (3) because of the delay itself. As I indicated, those matters were contained in a letter from Mr Graham's solicitors to the list office at the Maidstone Crown Court, the letter being dated 18th July 2003. The significance of the date is that it was on 23rd July 2003 that HHJ Simpson made his decision to grant Mr Graham an extension of time to appeal against the magistrates' court order made on 10th January 2002. I have no reason to believe the letter was not before the judge.
14. The documents in the bundle include a form of application for leave to appeal out of time to the Crown Court, completed by Mr Graham's solicitors, Messrs Bradleys, which is dated 27th May 2003. I assume this form of application prompted the judge, first of all, to suggest that the section 142 route be taken. That is an inference I draw from the existence of the document but I have no direct information before me as to precisely what the judge had before him when he exercised his discretion on 23rd July 2003. As I shall have reason to observe later no reason for his exercise of discretion in a manner favourable to Mr Graham is available.
15. The application form has, against item (3), a marginal note, which states:

"You should have appealed within a certain number of days. Please say why you did not appeal within that time.

If you need more space please use another sheet of paper and put your name on it."

16. Against that the solicitors had written:

"Unaware of the listing of the hearing of condemnation. Had made three trips from Scotland to Dover for previous adjournments.

Had a road accident in 2001 leading to brain injury, causing memory loss and blackouts."

17. The contents of that document are also covered by another communication from Bradleys, Mr Graham's solicitors, to the Crown Court, being a letter dated 20th May 2003. It informed the court that they acted for him and that he wished to pursue an appeal against the condemnation ruling on 10th January 2002. It set out something of the essential background, including the extent of the seizure which I have already cited, the quantities involved, the fact that there had been an adjourned, the result of the proceedings, the fact that the adjournments had led to three unnecessary journeys from Scotland to Dover. It next said:

"We are also informed that an accident resulting in a head injury led to medical treatment for memory loss and blackouts during the latter quarter of 2001.

Our client informs us that he was unaware that the condemnation hearing on 10 January 2002 was listed."

18. Taking it to be the case that the documents, being addressed to the Crown Court, bearing the contents which I have just indicated were before the learned judge, but without any knowledge as to precisely what was before him nor why he reached the conclusion he did, the next event is that by a letter dated 23rd July 2003 the court, through its case progression clerk, informed Mr Graham, at his solicitors, that the application had been granted and he was told that if he wished to pursue the appeal he had to serve a notice of appeal on the clerk to the justices at Dover and on the Customs and Excise within 21 days from the date of that letter, and attention was drawn to the fact that if he failed to do so it would be taken as an indication that he no longer wished to pursue the appeal and no further action would be taken by the court. Those are the essential facts in relation to the Graham case.
19. I now turn to the essential facts in relation to Mr McSorley's case. Mr McSorley was stopped in his vehicle in the control zone in Coquelles in France on 22nd September 2001. He had six kilograms of hand rolling tobacco, 198 litres of beer, 77 litres of wine and seven litres of spirits. They were all seized. His vehicle initially was seized but was restored because of his ill-health. That he is a man of ill-health he has drawn to my attention today, by handing to me a report from a doctors' practice in Sterling in Scotland with an assessment and statement of his state of health on 25th March 2003, some months afterwards, obviously, but clearly disclosing, unfortunately, significant conditions which affect his health. The revenue value of his goods was £1,300.
20. The condemnation proceedings were commenced by notice and they were, I am satisfied from the documents before me including on extract from the magistrates' court, originally listed to be heard once notice of opposition had been given on 14th January 2002, but once notice of opposition was given they were then adjourned until 23rd May 2002.
21. In this case it is not in dispute that Mr McSorley attended the hearing. His recollection many months after the event was that the hearing had been on 14th January 2002 but, as I say, I am satisfied from the court record that it must have been on 23rd May of that year. But the significant factor is that it was not until 27th November 2003 that anything by way of written notice of the position in connection with any appeal appears, although it is apparent, albeit not entirely clearly, that he had, at the hearing on 23rd May, made it clear that he wanted to appeal. But he has also, again very helpfully, handed me a letter dated 26th November 2003, a letter which obviously prompted the one which I am about to read of 27th November. It was addressed to him in Sterling, Scotland, from a firm of solicitors called Moon Beaver acting for the Customs and Excise and was written with a view to recovering the sum of £300 in respect of the condemnation costs which had been ordered.
22. I turn to the letter of 27th November addressed to the magistrates' court. It reads:

"Dear Sir,

On 14 01 2002 I was in court the case went in favour of HM Customs&Excise how ever once the case was over I asked the judge to appeal to the Crown Court when the Solicitor for the Crown heard this she then said in that case I [want] £300 cost the judge said ok I asked the judge what he gave the cost for after the case he said see the clerk. Also I appealed against this case at the Crown Court and I have not yet heard back from any one can you tell me how long it takes."

23. Having heard Mr McSorley today I take it that there was something of a misunderstanding. He obviously indicated that he wished to appeal before the costs order was made, but gained the impression that because he had mentioned he wanted to appeal he was being told to pay the costs. It is plain that he would have been ordered to pay the costs in any event, because they followed the event and he had been unsuccessful in the proceedings.
24. But more than that there is the reference to his appeal to the Crown Court and 'can anybody tell me how long it takes'. As to that he received a reply from the relevant magistrates' court service referring to the proceedings at Dover. It states:

"I have no record of having received an appeal notice from you in relation to this matter. Should you wish to pursue an appeal you should complete the enclosed notice and forward it to Canterbury Crown Court, Chaucer Road, Canterbury, Kent."

25. That I assume he did, because on 9th January 2004 HHJ Simpson granted him an extension of time to pursue an appeal and he received a letter from the court on 9th January 2004 in the same terms as that which Mr Graham had received, telling him that he had 21 days to get on with it. He gave notice that he did want to get on with it. As a result the Customs and Excise solicitor became aware that an application for permission to appeal out of time had been granted and so wrote on 16th January, very promptly, saying inter alia this:

"We would be grateful if you would set out the reasons such an application was granted and whether the judge considered the merits of the appeal given Mr McSorley imported 198.27 litres of beer, 77 litres of wine, 7 litres of the spirits and 6 kilograms of hand rolling tobacco."

26. The letter also went on to ask:

"Can you also confirm whether any consideration was given to Mr McSorley's failure to provide reasons why his application was 18 months out of time. His application is silent in this regard."

27. I have not seen the form, but I take it that the form he sent said nothing against the relevant paragraph. The Customs and Excise Civil Appeals Condemnation Unit received a response from the Maidstone Crown Court Service, from a Claire Newell writing on behalf of the judge, which informed the commissioners that the matter had been put before HHJ Simpson for his comments. The letter went on to say:

"The application was first seen by the Judge on 2 January 2004, when he caused enquiries to be made at Dover Magistrates Court regarding a letter which Mr McSorley claimed to have sent to that court, and to which he received no reply.

In response to the Dover enquiry this court received copies of 2 letters dated 27 November 2003 from Mr McSorley to [the magistrates] and their reply dated 11 December 2003."

28. Copies were supplied under cover of this letter. Those letters are the ones to which I have already referred. The letter went on to state:

"These documents were placed before HHJ Simpson on 9 January 2004, who took the view that without calling all relevant parties to court it would be impossible to discover exactly what did happen between 23 May 2002 and 27 November 2003. Since it seemed that more muddle, or oversight, might have occurred in regard to this matter, the Judge decided that he ought to give leave out of time.

As to the other question posed in your letter, the Judge regards this as an impertinent form of attempted encroachment upon his judicial discretion and he has no intention of dealing with them. Private citizens are entitled to the same consideration as any government body - no more, no less. This topic is now regarded as closed."

29. On these facts these applications for judicial review, permission having been granted by different judges in relation to each, have been ordered to come on before me today.
30. The starting point, so far as the relevant statutory provisions are concerned, is that appeals to the Crown Court are governed by the Crown Court Rules 1982 Statutory Instrument 1982 No. 1109. Rule 7 is headed 'Notice of Appeal' and it sets out the manner in which an appeal can be commenced, namely by giving notice of appeal in accordance with the following provisions of this rule. 7(3) provides:

"(3) Notice of appeal shall be given not later than 21 days after the day on which the decision appealed against is given ...."

31. 7(4) provides:

"(4) A notice of appeal shall state-

(a) in the case of an appeal arising out of a conviction by a magistrates' court, whether the appeal is against conviction or sentence or both; and

(b....

(5) The time for giving notice of appeal (whether prescribed under paragraph (3), or under an enactment listed in Part 1 of Schedule 3) may be extended, either before or after it expires, by the Crown Court, on an application made in accordance with paragraph (6)."

32. The manner which is provided under paragraph (6) is as follows:

"An application for an extension of time should be made in writing, specifying the grounds of the application and sent to the appropriate officer of the Crown Court."

33. It has been submitted, in my judgment correctly and without contention, that the discretion conferred upon a Crown Court judge under Rule 7(6), is not specifically circumscribed by any particular factors or considerations. It is a broad discretion which must be exercised in all the circumstances of the case as they are made out, and after having regard to established principle in connection with extensions of time for appealing.
34. As was helpfully pointed out in the skeleton argument which Mr Barnard, for the Customs and Excise, prepared the case law shows that whether they be criminal proceedings or whether they be civil proceedings or, for that matter, I might add whether they be proceedings in this court in the Administrative Court, there is a discernible approach which the courts have developed disclosing factors regarded as relevant when considering applications of this sort. No one factor is to be regarded as determinative.
35. In the light of CPR Rules, of course, it is now a matter of emphasis and clear direction that the court acts in order to achieve justice. That, in my judgment, is the broad principle, which the case law, going back for many years, demonstrates has been the constant objective which the court has sought to achieve. The factors which are relevant comprise the framework which has been established for the proper approach to be adopted on an application for an extension of time to appeal. The framework made up of these factors is directed towards achieving justice. I emphasise the fact that when one talks about achieving justice in any case, one is not talking about justice so far as it affects one party, it is a matter of achieving justice between the parties. Therefore a Crown Court judge when he hears an application for an extension of time to appeal acts so as to achieve justice for the parties in the case. This will not simply be achieved by granting relief to the party making the application.
36. As it happens, and it is a material factor, the Crown Court Rules provide that the application for an extension of time for leave to appeal to the Crown Court are made by one party, in ex parte proceedings. But it is an express requirement of the Rules that the application specify the grounds of an application. That being the case, the next question is: what must be within the application? What matters are capable of amounting to grounds for the application? Mr Barnard, in my judgment rightly, refers to the judgment of Taylor J (as he then was) in the case of R v Croydon Crown Court ex parte Smith 1983 77 Cr App R 277. The court was concerned with applications for leave to appeal out of time to the Divisional Court, and the following observation appears:

" ... under paragraph 6, the grounds of the application which have to be specified should include the proposed grounds of appeal as well as any reasons for applying out of time. It will then be possible for the court to take into account the merits of the case in reaching its decision whether to extend time or not."

37. In my judgment that short citation says everything which needs to be said about the essential framework for the court and the essential factors to which the court will be directing its attention when considering such an application. They are, in essence, the reasons for the delay and, secondly, the merits of the proposed appeal.
38. As to the first, namely the reasons for the delay, it is true that according to the length of the delay the court's consideration, namely the weight it might attribute to, for example, the absence of any explanation for the delay, will vary according to the actual length of the delay.
39. Mr Harrison helpfully drew the court's attention to the Court of Appeal decision in Thorn PLC v Kathleen MacDonald and Peter MacDonald, (transcript of the judgment as approved 1st September 1999) where the Court of Appeal had to consider an appeal against a judgment which had been entered in civil proceedings against a defendant for failing to lodge a defence within the time limits provided. Of course this is a slightly different area, bearing in mind, it was concerned with issues which arise, as between civil litigants, where the procedural rules are not complied with strictly. But it has been drawn to my attention, rightly by Mr Harrison, because Brooke LJ who gave the judgment of the court had this to say about the general approach. He concluded by saying this:

"This court, in my judgment, would be doing nobody any service in seeking to reintroduce into the interpretation of these rules judgments of courts which were given under the old regime, in so far as the new regime has taken over from the old regime. I can see nothing in rule 13.3 or in the overriding objective in part 1 to suggest that, if a defendant does not give a reason for the delay, that is somehow or other a knockout blow, on which a claimant is entitled to rely in support of an irresistible submission that there is no material on which the court can exercise its discretion in the defendant's favour.

The fact that the defendants have given no reason for a delay is, of course, one of those matters which the court may wish to take into account if there is a long, unexplained delay, and if the claimants would be prejudiced if a judgment were set aside. The court should, however, in my judgment refrain from being prescriptive about the way Circuit Judges and District Judges in the exercise of their discretion should apply rule 13.3. We are operating a new procedural code ... and we must not be tempted to return to earlier judgments decided under the previous rules and have them cited all over again, with attempts to distinguish one conflicting decision from another."

40. As I have indicated the case was concerned with the new rules, the new Civil Procedure Rules and the court was concerned therefore to clarify the relevance of the earlier authorities. In this case one is dealing with the jurisdiction of the Crown Court by reference to a rule which has stood for some time, where over-prescription by the building up of case law has not occurred. In this instance the approach of the Crown Court discloses a need for re-asserting the general principle as to how the matter should be approached. As I have indicated no better guidance, it seems to me, can be found than in the judgment of Taylor J in the passage I have already cited.
41. The upshot of the matter, in my judgment, is that so far as there is a failure to explain delay, much will depend upon the period of delay itself. If, as in the civil case to which I have just referred, the period of delay is seven days a Crown Court judge looking at such a period of delay might not be too anxious about any consequential prejudice which might have flowed, nor demanding in requiring specific explanation as to why seven days has passed. It is regrettable, but a fact of life, that seven days often elapse beyond time limits which are set by rules and the normal explanation is that those responsible or acting for a litigant have not had the time to deal with it within the time provided by the rules. That is a matter which the court can readily weigh in the scales.
42. But in these cases we are concerned with months of delay. Months passed between the condemnation proceedings and what appears to be any active response from the defendants to those proceedings. Experience in the courts shows that the event which often provokes a response at a late date is, not so much the long lingering, but unexpressed, desire to appeal, which has been present for months and months and months, but the fact that some new step occurs in the proceedings, for example, a letter giving notice that there is a debt which now has to be paid, may be received. That can focus the mind of those who have let matters drift in the hope that the problem might go away.
43. In my judgment, having regard to the circumstances in which these applications were made, it was incumbent upon the judge, in the proper exercise of his discretion, to consider, in each case, first of all the reasons which had been given for the delay, and next to address the merits of the proposed appeal. As has been pointed out, not always with a view to coming to a determined or final view upon the merits of the appeal. He may form a clear view but how far it will be right to expect it will vary. Where permission is refused and he is of the clear view there are no merits, it may well be appropriate to state his view. If granting permission he may well not elaborate. But justice requires that the merits of the appeal must be looked at because, for example, justice to the successful party in the proceedings below requires that if there are scant merits in an appeal, that is an essential matter which has to be considered. If there are no real merits it is unjust that a successful party, many months after the event, should be put to the costs of an appeal which has little or no prospect of success.
44. So far as the case of Graham is concerned the judge had nothing placed before him by way of an explanation for the long delay of months which had occurred before the making of the application. So far as any grounds for the appeal were concerned he had only a suggestion that the grievance was Mr Graham, had not been present at the hearing on 10th January 2002 and did not know about those proceedings. Against that there was a finding by the magistrates in the section 142 application that he knew of the proceedings.
45. So far as this point is concerned, it is plain he had not been present, but the judge had before him information from the magistrates' court showing that he had been aware of the 10th January 2002 decision and further that his son had been present on an earlier occasion when he had sought an adjournment of the 10th January hearing. Thus the judge had material from which he would have seen that the suggested basis for the exercise of discretion was questionable. In effect he was being asked to review the magistrates' exercise of discretion in refusing an adjournment of the 10th January 2002 hearing, without any grounds being put before him to demonstrate it was a wrongful refusal of an adjournment.
46. But, more than that, there was nothing in the matters which were placed before him which indicated the appeal had any merits. Of course the judge would have been alert to the possibility and he would have weighed it, as any judge would, that there had a serious and significant decision made in proceedings in relation to property where the affected party had not been present at the hearing. But where it was open to him to be satisfied that due notice of the hearing had been given and that he knew the nature of the order which was likely to be made on such an occasion, Mr Graham's absence does not necessarily compromise a matter of great significance. These are matters which, in my judgment, it fell to the judge to consider but there is no evidence that he did so.
47. So far as this court is concerned it is impossible to conclude from the material in the case that the learned judge addressed either of these two essential pillars of the framework for justice being done. He, in my judgment, therefore came to a conclusion which was unlawful. He failed to address relevant considerations which he should have considered in the exercise of his discretion. He had before him material which demonstrated that the case which was being advanced, at least in one respect, was not correct according to a determination of the magistrates who had considered the matter, and he does not appear to have given any consideration to the absence of any explanation for the long period of delay. He had no material before him upon which to consider the merits of the proposed appeal.
48. I turn now to Mr McSorley's case. Mr McSorley's case differs in that we have the advantage of the letter written on behalf of the judge. I shall return to that.
49. So far as the reasons for the delay are concerned it would appear that there was nothing before him to explain the delay. In so far as the case generally was concerned there was material before the judge to show that Mr McSorley had been present at the hearing, and that after the hearing he had attempted to take some steps to pursue an appeal. There was indeed some material to suggest that perhaps the steps taken by Mr McSorley had, through some administrative blunder or error or confusion, not surfaced.
50. But, and this is, in essence, what the letter from the court says on the judge's behalf, he looked at the papers and he concluded that it would be impossible to discover exactly what did happen between 23rd May 2002 and 27th November 2003 without calling all the relevant parties to court. He observed that it seemed more muddle or oversight might have occurred and therefore he ought to give leave to appeal out of time.
51. The judge does not disclose that he applied his mind to the merits of the proposed appeal or to the absence of an explanation for the delay. When asked to set out the reasons why the application had been granted and whether he had considered the merits of the appeal the claimant received the reply I have already recorded.
52. I am bound to say that, in my judgment a party to proceedings, affected by a court order but not possessed of any knowledge of the application to the court which has generated the order, which order is adverse to that party's interest cannot be regarded as being impertinent or encroaching upon the judge's judicial discretion in making a request for the judge to give his reasons. I shall come, when I conclude this judgment, to make some observations about the giving of reasons and to suggest a procedure which could be adopted to meet the interests of litigants in these situations. But reverting to the judge's consideration of the matter this court is left in ignorance as to what consideration was given to the merits of the matter and what conclusion, if any, was reached on the merits or the absence of a reason for the delay.
53. Secondly, so far as the suggested confusion is concerned, in my judgment, it was unduly pessimistic to take the view that what was required was a hearing which all the parties should attend. The simple question was one which had already been placed before him by the letter dated 27 November which Mr McSorley had written, in which he suggested he had written to the Crown Court with a view to pursuing an appeal. So far as the Commissioners of Customs and Excise are concerned, had he written such a letter there was no reason to believe that they would be in receipt of a copy or have any knowledge that it had been written. Nor would they be able to provide any assistance as to what occurred between 23rd May 2002 to 27th November 2003.
54. In an application in which the burden is upon the person applying to the court to explain a delay, the relevant material could only come from Mr McSorley. Whether or not there had been a muddle the judge had himself sought to clarify by causing enquiries to be made at the Dover Magistrates' Court. The result of those enquiries did not advance the application. It certainly did not advance the suggestion that there had been any administrative confusion or muddle in any way which was material or significant. Plainly, a judge, if he was satisfied that there had been administrative failure on the part of the court system, would place great weight upon that matter in considering whether or not to grant permission to appeal out of time. But there was nothing to disclose, on the facts, any causation as between the two events. In any event, whatever conclusion the judge reached upon the confusion or muddle had to be weighed against a proper consideration of the merits of the prospects of the appeal. None of that, in my judgment, took place and for the same reasons as I adumbrated in respect of the learned judge's conclusion in the Graham case, I conclude that his decision in this case was flawed by an unlawful exercise of his discretion.

Possible solutions for the future:

55. It seems to me that the issues which have been raised by this case identify a particular difficulty which might arise, in particular in connection with these civil proceedings in magistrates' courts, which can have considerable significance and impact upon defendants to them. It may well be that other cases also give rise to these problems, but I venture to suggest that in most criminal proceedings, namely pure crime, matters of appealing to the Crown Court from magistrates' orders are not likely to throw up the incidents which these cases demonstrate can occur, nor some of the special features to which these cases give rise.
56. The first matter is that the application for leave to appeal out of time is an ex parte application. That means that the affected party, in this case the Customs and Excise, have no knowledge that an application for an extension of time is being made. The first time the affected party will acquire the knowledge is when, in accordance with the grant of leave for permission to appeal, an order is served within the 21 days which the rules require. But when that is served the party affected by the grant of the extension of time will not normally, indeed is not likely to be, informed as to the reasons why an extension of time was granted.
57. In respect of such a grant of extension of time, having regard to the time limits for judicial review, there will be a period of three months available for the affected party to challenge the grant of extension of time, as the Customs have done in this case.
58. Two questions therefore arise. The first is: should a judge in the Crown Court when granting an extension of time give reasons for the grant or refusal of the extension? In my judgment, without attempting to be prescriptive where the rules and regulations are not, and setting out only what, in my judgment, seems to me a desirable course to be followed to avoid procedural confusion and delay, a judge should give succinct reasons why an extension of time has either been granted or refused.
59. If it is refused the litigant, who will not be able to pursue an appeal, has a legitimate interest in knowing why he is not going to be able to pursue an appeal and why his application and the grounds he has put forward have been unsuccessful. So far as an affected party is concerned, for the reasons I have already foreshadowed, it seems to me that it could be a matter of some significance. In these cases affecting the Customs and Excise it is of considerable significance. They could be faced with an appeal in connection with property, for example a car, which they had disposed of to a third party. An appeal would raise issues in connection with the disposal of that car and their right to do so. In such circumstances a party is entitled to consider its position and take legal advice.
60. Secondly, having brought the proceedings in the magistrates' court, if they are required to bring them again in the Crown Court they will be required to call evidence, including first-hand evidence as to the circumstances of the seizure and any conversations which took place at the time. All this will incur costs. In my judgment, if a party so affected is potentially open to the prejudice to which an unsuccessful appeal will give rise, good and fair procedure points to the need for reasons to be available.
61. The next question therefore is: who should provide the affected party with the reasons in a case where the application has been successful? It obviously would not arise in an unsuccessful application. In my judgment, the position could, without any difficulty, be provided for, as it is customarily provided for in many instances in the Administrative Court, where for example, orders are made on the papers without the defendant having put in an acknowledgment of service or where no part has been taken in the proceedings and where a decision or direction or matter is made which affects the other party. In such instances it is simply a matter for the court to communicate with the party. I see no reason why a Crown Court judge should not, in these circumstances, simply indicate that the result of a successful decision to grant an extension of time, with reasons, should be communicated by the relevant officer in the Crown Court, to the affected party.
62. If that is not done, and I cannot suggest that it is mandatory that it should be done, not everything will be lost, because, if leave is granted, then the affected party can always write to the court and say: why has leave been granted? I hope they will get a reply to the letter which is a little more helpful than the one they got from the Maidstone Crown Court on this occasion upon receipt they could take a view of the matter and decide whether or not to apply for judicial review.
63. In my judgment the Crown Court should see it as the function to inform the affected party of the decision and the reasons for the decision. I cannot imagine that it is going to be a great burden to Crown Courts. I cannot imagine that there are so many applications for permission to appeal out of time as to cause this to add immensely to the workload.
64. For all those reasons, in my judgment, these applications for judicial review must succeed and the respective decisions in the case of Graham and in the case of McSorley must be quashed.
65. MR BARNARD: My Lord, as far as costs are concerned I understand Mr Graham has, of course, a certificate, I would ask your Lordship to say 'costs not to be enforced without the leave of the court'.
66. MR JUSTICE NEWMAN: I do not suppose you want to resist that?
67. MR HARRISON: My Lord, no.
68. MR JUSTICE NEWMAN: No.
69. MR BARNARD: And, as far as Mr McSorley is concerned, we do not make any application for costs.
70. MR JUSTICE NEWMAN: No.
71. MR BARNARD: My Lord, there is one matter, if I may say, in just one second, in your judgment.
72. MR JUSTICE NEWMAN: Yes.
73. MR BARNARD: Because it seems to me it may well be a matter that the reporters would want to report. Your Lordship was referring to the judgment of Taylor J in the ex parte Smith case and, my Lord, when you referred to that you said that the court was then concerned with an application for leave to appeal to the Court of Appeal. My Lord, of course it was not; it was to the Crown Court. It was the Divisional Court.
74. MR JUSTICE NEWMAN: Thank you very much. Well, I will clear that up when I get the transcript, as I will, for approval. Thank you very much for drawing that to my attention. Could those documents be returned to Mr McSorley? Thank you.
75. MR HARRISON: My Lord, there is one other matter in the case concerning an application for leave to appeal and I do make application for leave to appeal at this time.
76. MR JUSTICE NEWMAN: That is refused. Thank you very much.