England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/05/2008

Lord Justice Hooper:

1. This appeal raises the question:

Whether it is a fatal bar to an appeal against an order extraditing (or not extraditing) a person, that a copy of the duly filed appeal notice was served on the respondent a few minutes late?

In the instant case the appeal notice was filed in time. The time limit for serving by fax on the respondent a copy of the filed notice of appeal expired at 4.00 pm on the 6th day after the making of the order. Although the transmission of the fax may have started before 4.00 pm, it was not completed until just after 4.00 pm. Collins J ordered the jurisdictional issue to be resolved first.

2. Previous appeals in the Divisional Court and in the Administrative Court have established that the answer is "Yes" to this question. Mr John Jones for the respondent requesting authority submits that we should follow these cases. Mr Manjit Gill QC submits that these cases were wrongly decided.
3. At about 3.20 pm on Friday 14 March District Judge Anthony Evans under Part 1 of the Extradition Act 2003 ordered the extradition of the appellant to France. Part 1 implements the European Union Council Framework Decision of the 13 June 2002 on the European arrest warrant and the surrender procedures between member states (2002-584-JHA). By virtue of Article 1, the European arrest warrant is a judicial decision issued by a member state with a view to the arrest and surrender by another member state of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order.
4. Mr Henley, counsel for the appellant at the hearing, telephoned Neena Baba, the solicitor who had conduct of the case, to tell her what had happened. Mr Henley indicated that he was considering the merits of an appeal and was minded to seek the advice of leading counsel.
5. On Monday 17 March 2008, the appellant's solicitors asked for an appointment with Wandsworth prison where the Appellant was a serving prisoner in order to take instructions from him and to get the legal aid forms signed. They were given an appointment for Wednesday the 19 March 2008.
6. Also on Monday, 17 March Mr Henley wrote an advice on the merits of an appeal against the order of District Judge Evans.
7. Mr Henley noted that it was an extremely urgent matter. He pointed out that the appeal notice must be filed and served before the expiry of seven days starting with the day that the order was made. He made reference to the appropriate Practice Direction to which I shall refer later in this judgment. He went on to note that the notice had to be filed and served by 20 March 2008 (Maundy Thursday).
8. It is not disputed that the copy of the appeal notice to be served on the respondent is a copy of the filed appeal notice stamped as received by the court. See R (on the application of Mendy) v. Crown Prosecution Service [2007] EWHC 1765 (Admin), paragraph 9.
9. In paragraph 29 of his advice Mr Henley wrote:

Mr Moulai gave me clear instructions at the conclusion of the extradition hearing that he wished to pursue an appeal. I would ask IS [Instructing Solicitor] to write immediately to the CPS notifying them of our intention to file and serve a notice of appeal.

That was done.

10. He continued:

30. ... IS should make immediate application for public funding to the LSC.

31. ... IS should inform Mr Moulai and the prison authorities that an appeal is being lodged and that any communication with regard to Mr Moulai's extradition be forwarded to IS and that Mr Moulai be allowed to phone IS to immediately instruct them of any developments in that regard.

32. I will draft grounds of appeal and the appropriate appeal notice.

33. A further advice will be prepared with regard to the additional arguments.

34. The following documents must be filed with the application:

a. two additional copies of the appellant's notice for the Appeal Court;

b. copy of the appellant's notice for the respondent;

c. a copy of the order;

d. an agreed note of judgment.

11. On Tuesday 18 March Mr Henley prepared a draft note of the judgment of the District Judge, which, after discussion with Mr Jones, was approved. The draft note was needed both for the preparation of the completed appeal notice and for submission to the District Judge. On 20 March the District Judge amended counsel's draft and returned it to Mr Henley, who sent it back to Mr Jones for his approval.
12. During the visit to HMP Wandsworth on Wednesday 19 March, Mr Moulai instructed his solicitors to proceed with the appeal and signed both civil and criminal legal aid forms. Contact was made with the LSC and the Administrative Court Office in order to find out the correct procedure for applying for public funding. An application had been made for civil legal aid for which it is possible to get emergency funding without the need of Mr Moulai's signature. The application was rejected on the 19 March 2008 by fax. However the appellant's solicitor, Ms Neena Baba, had had the foresight to obtain a signed copy of the criminal legal aid form when Mr Moulai was visited on 19 March 2008 and this was used by the solicitors to make the application to the Administrative Court for legal representation. This was submitted to the court with the notice of appeal on 20 March 2008. Mr Jones criticised the solicitors for taking time in ascertaining how to obtain public funding in extradition cases. He also submitted that the work should be done to prepare an appeal not knowing whether legal aid will be granted. Given these criticisms we asked a senior case lawyer in the Administrative Court office to help us. He says that the Magistrates' Courts representation orders  specifically state:

This order covers work undertaken by a solicitor in the Magistrates Court (including advice and assistance in regard to making of an appeal against conviction or sentence but excluding  the actual appeal proceedings).

He tells us that the office has always taken the view (and advised any solicitors who ask) that solicitors should prepare the appeal notice and file it under the Magistrates' Court order.  He says that there has been an issue as to whether the fee of £200 is recoverable under that order, but it appears that it is and that many solicitors take the precaution of getting their legal aid application filed at the same time as the appellant's notice, so that the representation order for the appeal covers it as well, because the representation order for the appeal is backdated to the date the application is received. We have not sought further argument about this information and include it only to help practitioners in other cases. I take the view that whether the criticisms made by Mr Jones are justified or not, the outcome of the appeal would be the same.

13. On Wednesday 19 March Mr Henley drafted the grounds of appeal. In the second paragraph he stated:

"The appellant was arrested under a European arrest warrant on 2 November 2007."

The significance of that will become clear later in my judgment. He was, so he told us, unable to forward his draft until the morning of Thursday 20 March, as he needed further information.

14. Ms Turawa, a solicitor in the same firm as Ms Baba, takes up the story in her witness statement:

We received the grounds of appeal on 20 March 2008 at approximately 9:30 am from Mr Henley. Ms Baba was not in the office that day and I had conduct of the matter with regard to filing and serving the notice of appeal. At some stage that morning I had a telephone conversation with Mr Henley in order to finalise some of the details within the notice. I had prepared the relevant paperwork but was unable to leave office until about 2 pm due to unavoidable professional commitments.

At about 2 p.m., just as I was about to leave, I was telephoned by the CPS who asked me whether the appeal notice was going to be served today I said I was on my way out to court to file the notice and I then said that I would fax the application to them. I was then told that the fax had to be with them by 4 pm. I said that there should be no difficulty in faxing to them at 4 pm. I was then told that the reason for phoning them was in order that they could discharge their professional duty, in relation to informing me about service, which they had now done. I was not told that if there were any difficulties I could always bring it round to their offices personally but that in that case I had to do it by 5 pm.

As stated in my earlier statement, I got to the court office about 3.20 and I finished filing the appeal at 3.45. I then went to Mr Henley's chambers in order to fax to the CPS's offices from those chambers. The fax was sent and I was under the impression that it had gone through before 4 pm.

No one from the CPS suggested to me that it had not been served properly until Ms Baba was faxed a letter by Mrs Riley on the 25 March 2008 and told me that there was a problem with the service of the claim form.

15. According to the fax transmission sheet the fax was transmitted at 16:03. The fax consisted of 12 pages and took two minutes and 48 seconds. Evidence was placed before us as to the inaccuracy of the clock in the clerk's room and the inaccuracy of the clock on the fax machine. The copy received by the CPS showed a time between 16:04 and 16:06, a time said, on behalf of the appellant also to be inaccurate. The accuracy of the clock which cannot now be verified. Unfortunately CPR r. 6.7 provides that a document which is served in accordance with these rules or any relevant practice directions should be deemed to be served on the day shown in the accompanying table. If the document is served by fax and is not transmitted before 4:00pm on a business day then it shall be deemed to be served on the business day after the day on which it is transmitted (the deeming is "irrebuttable", see Godwin v. Swindon BC [2001] EWCA Civ 1478). The 21st March being Good Friday and Monday the 24th March being a bank holiday, the next business day was Tuesday 25 March. Mr Gill QC who appears for the appellant accepts that a fax is not transmitted until it is received by the recipient's machine. That interpretation is in accord with the rules regarding filing at court by fax (see CPR Part 5 PD 5.3).
16. Alison Riley a barrister of the Crown Prosecution Service Extradition Unit had the conduct of the case on behalf of the issuing Judicial Authority of France. She says that on the 20 March 2008 at 17:44 the Administrative Court emailed the CPS Caseworker Gillian Adeyemo to say that an appeal had been lodged. The email read: "Please note new Extradition Appeal lodged -  please let me have details of Counsel, Case lawyer and time estimate". In paragraph 6 of her witness statement, Ms Riley wrote:

"At the time this e-mail arrived – 17:44 – I had no knowledge that an appeal had been lodged."

She was given the faxed notice of appeal on Tuesday 25 March 2008. It was the first time that she knew that an appeal had been filed. (We are also told that she was in the office on the Thursday the email arrived until 18.30.)

17. On the Tuesday Ms Riley wrote to the appellant's solicitors informing them that the fax having been received after 4:00pm, the Administrative Court had no jurisdiction to entertain the appeal.
18. If the service was not effective, the appellant has made an application under CPR r. 6.9 that the court dispense with service of the appeal notice on the respondent. Alternatively the appellant applies pursuant to r. 3.10 for the court to use its powers to remedy the error resulting from the late service of the appeal notice or to use its powers under r. 3.1(2) for time for service of the appellant's notice to be extended as necessary.
19. Having considered all the evidence regarding the timing of the fax Mr Gill accepted that even though the transmission may have started just before 04:00 pm it was not completed by 4:00 pm. In those circumstances he accepts that the service was out of time.
20. Mr Jones describes what happened as "entirely the appellant solicitors' fault", due to their "inattention and dilatoriness". Bearing in mind that the copy notice of appeal to be served on the respondent must be a copy of the filed notice which must include the grounds of appeal (the notice was, as I have said, filed in time), this seems to me to be a harsh judgment- harsh on the solicitors and very harsh on the appellant who is detained in prison and has no control at all over the matter. Likewise Mr Jones argues that it is insufficient to say, as Ms Turawa did, that "unavoidable professional commitments" had kept her in the office until 2.00 pm on March 20^th. The argument, it seems to me, underestimates the pressure on solicitors such as Ms Turawa, who are willing to undertake this kind of work.
21. On the authority of District Court of Vilnius v. Barcys [2007] EWHC 615 (Admin) and [2007] 1 WLR 3249 (to which I shall return), it is said that that it would have made no difference if Ms Turawa had been unable to file the notice because the RCJ was closed due to a power failure or unable to serve the notice by fax because the CPS fax machine was out of order and then unable to hand deliver the notice because of distance or, say, a terrorist outrage.
22. It might be thought in any just system of law a procedural defect of this kind could be waived particularly bearing in mind the very short period allowed for getting the appeal in order, the fact that the notice of appeal was filed in time and also the fact that the appeal involves the liberty of a person and delivering him to the requesting member state of the European Union (some of which have only recently joined). Part 1 of the Extradition Act includes a number of "bars" to extradition, see e.g. sections 11, 12, 13, 14, 17 and 21, the last of which requires the judge to decide whether extradition would be compatible with European Convention rights. Thus an appeal forms an important part of the protection of a person from unlawful removal. Although the requesting state is subject to the same time limits, there is a difference. If the requesting state falls foul of the procedural regime, it may start again. The individual appears to have no remedy if a procedural defect cannot be waived. Mr Jones suggested that he could challenge the legality of his detention by way of habeas corpus. That seems very doubtful to me.
23. I propose first to examine the legislation and the rules, without reference to the earlier cases.

The legislative provisions

24. Section 26 of the Extradition Act makes provision for an appeal against an extradition order to the High Court. (Section 28 makes very similar provision for an appeal by the requesting state against an order discharging a person.) Section 26(3) provides that an appeal may be brought on a question of law or fact. Sub-section (4), which is of central importance in this appeal, provides:

Notice of an appeal must be given in accordance with the rules of court before the end of the permitted period, which is seven days starting with the day on which the order is made.

There is no dispute that "rules" includes practice directions made pursuant to the rules.

25. Section 27 sets out the powers of the High Court on such an appeal. Amongst those powers are the power to consider issues and evidence not before the extradition judge.
26. An appeal against the order of a district judge made under Part 1 extraditing (or discharging) a person is heard in the Administrative Court and the general procedure is governed by Part 52, supplemented by a Practice Direction. Paragraph 22.6A of the Practice Direction, provides that: the appellant's notice must be filed and served before the expiry of 7 days, starting with the day on which the order is made. It also provides that "the appellant must endorse the appellant's notice with the date of the person's arrest". R. 2.3(1) (not cited in argument) provides:

`filing', in relation to a document, means delivering it, by post or otherwise, to the court office; ...

In Van Aken v London Borough of Camden [2002] EWCA Civ 1724 (also not cited in argument), it was held that delivery of an appeal notice to the appropriate court office after the closing of the office on a business day is sufficient to constitute the "filing" of the notice within the terms of the definition of that word in r. 2.3(1).

27. Mr Jones accepts that but for the provisions of section 26(4), the court would have the jurisdiction to waive this time limit and waive any failure to endorse the appellant's notice with the date of the person's arrest. This is an important concession, which Mr Jones was right to make. If the court does not have the jurisdiction to waive this time limit or waive any failure to endorse the appellant's notice with the date of the person's arrest, it can only be because the primary legislation excludes such a waiver.
28. R. 52.6 gives the court power to vary the time limit for filing an appeal notice. Part 3 sets out the case management powers of the courts. R. 3.1(2)(a) gives power, except where the Rules otherwise provide, to extend the time limit for compliance with a rule or practice direction. R. 3.10 provides:

Where there has been an error of procedure such as a failure to comply with a rule or practice direction:

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error.

29. Part 6 makes provision for the service of documents. R. 6.9 provides:

(1) The court may dispense with service of a document.

(2) An application for an order to dispense with service may be made without notice.

See also Part 52 PD 5.23, which describes what the appellant must do if he wishes the court to dispense with the requirement of service on the respondent.

30. For convenience, I shall call these powers the power to waive procedural defects.
31. Mr Jones submits, however, that the effect of section 26(4) (read with other sections and taking into account the emphasis on the requirement of speedy resolution of Part 1 extradition requests), is that the court has no power to waive procedural defects relating to the timing of the filing and service of the notice of appeal and the requirement to endorse the notice with the date of the appellant's arrest. This appeal is not concerned with the timing of the filing of the appeal notice nor with the requirement to endorse. Mr Jones accepted that the reference to the date of the arrest in the grounds of appeal attached to the appeal notice (although not in the appeal notice itself) was sufficient.
32. In addition to section 26(4), Mr Jones and Mr Gill rely, in different ways, upon sections 35 and 213. Section 35 provides:

(1) This section applies if:

(a) the appropriate judge orders a person's extradition to a category 1 territory under this Part, and;

(b) no notice of an appeal under section 26 is given before the end of the period permitted under that section.

(2) ...

(3) The person must be extradited to the category 1 territory before the end of the required period.

(4) The required period is:

(a) 10 days starting with the first day after the period permitted under section 26 for giving notice of appeal against the judge's order or

(b) if the judge and the authority which issued the warrant agree a later date, 10 days starting with the later date.

(5) If subsection (3) is not complied with and the person applies to the appropriate judge to be discharged the judge must order his discharge, unless reasonable cause is shown for the delay.

(6) These must be ignored for the purposes of subsection (1)(b):

(a) any power of a court to extend the period permitted for giving notice of appeal;

(b) any power of a court to grant leave to take a step out of time.

33. Section 213, an interpretation provision, provides:

(2) A request for a person's extradition is disposed of:

(a) ...

(b) ...

(c) when an order is made for the person's extradition in pursuance of the request and there is no further possibility of an appeal.

(3) There is no further possibility of an appeal against an order for a person's discharge or extradition:

(a) when the period permitted for giving notice of an appeal to the High Court ends, if notice is not given before the end of that period.

(b) ...

(4) ...

(5) These must be ignored for the purposes of subsections (3) and (4):

(a) any power of a court to extend the period permitted for giving notice of appeal or for applying for leave to appeal;

(b) any power of a court to grant leave to take a step out of time.

34. I start with section 26(4) set out above in paragraph 24. The first issue between the parties relates to the meaning of the words "Notice of appeal ... must be given". Mr Jones submits that the giving of the notice of appeal includes not only the filing of the notice but also the serving on the respondent of the filed notice. Mr Gill disagrees and relies upon the Explanatory Note in support of his argument that the giving of the notice of appeal refers only to the filing of the appeal and not the service of the appeal. The Note states:

This section gives a person a right to appeal against the decision of the judge to order extradition under Part 1 of the Act.

Subsection (1) explains that a person may appeal to the High Court against a decision of a judge to order extradition, except where (subsection (2)) the person has consented to his extradition (see sections 46 and 48). Appeals may be made on a question of law or fact (subsection (3)) and notice of an appeal must be given to the High Court within 7 days of the extradition order being made by the judge (subsection (4)). (Underlining added)

35. Mr Gill also relies on section 213(3) which provides that there is no further possibility of an appeal against an order for a person's discharge or extradition when the period permitted for giving notice of an appeal to the High Court ends, if notice is not given before the end of that period. (See also section 214(2)(a) to a similar effect). Section 213 being an interpretation section can rightly be prayed in aid by Mr Gill.
36. In my view Mr Gill is right. The giving of the notice of appeal refers to the filing of the notice of appeal in the High Court.
37. Are the provisions of the rules permitting waiver of a procedural defect then inapplicable to late filing of the notice because the primary legislation requires the notice of appeal to be filed within 7 days? To decide whether a failure to comply with a time limit in primary legislation is fatal, the test is that set out by Lord Steyn in R –v- Soneji [2006] 1 AC 340, paragraph 23. The court must ask whether Parliament can fairly be taken to have intended total invalidity as the consequence of non-compliance.
38. Taking into account that section 26(4) requires, as I have found, that the notice of appeal must be filed within 7 days and taking into account section 35 (6) and 213(5), it seems likely that the intention of the legislature was that late filing of the notice of appeal is fatal and the court has no jurisdiction to hear the appeal. That was the conclusion of the Divisional Court in Barcys. If so, r. 52.6(1) (extension of time for serving a notice of appeal) has no application.
39. Was it the intention of the legislature that late service of the notice of appeal is also fatal, i.e. cannot be waived? Mr Jones argues (and must argue in the light of the concession referred to in paragraph 27 above) that the intention of the legislature was that late service of the notice of appeal is also fatal.
40. Given how I have interpreted the meaning of the words "Notice of an appeal must be given", section 26(4) only helps Mr Jones if, as he submits, the words "Notice of an appeal must be given in accordance with the rules of court" assist him. He submits that these words mean that any failure to comply with the rules setting out the requirements for bringing an appeal is fatal. In particular, he argues that failure to comply with that part of PD 52 which requires the appellant's notice to be served (as well as filed) before the expiry of 7 days or which requires the appellant to endorse the appellant's notice with the date of the person's arrest is fatal. If this argument is logically right then any failure to comply with the rules would also seem to be fatal. But Mr Jones appeared to accept that there are procedural requirements, with which the failure to comply would not be fatal. It seems to me unlikely, for example, that the failure to file all the necessary accompanying documents with an appeal notice or in the prescribed form could not be waived. The PD in paragraph 5.6 lists the documents which must be filed with the appeal notice. The list includes a sealed copy of the order being appealed. In the instant case the solicitors noted that sealed orders of the Magistrates' Court are not normally available. Paragraph 5.7 envisages that some documents may not be available and requires the appellant to provide a reasonable estimate of when the missing documents can be filed and requires them to be filed as soon as reasonably practicable. It was not, so it seems to me, the intention of Parliament when using the words: "Notice of an appeal must be given in accordance with the rules of court", to make a failure to file a document or comply with paragraph 5.7 fatal. Nor does it seem likely that some of the time limits, for example for filing the certificate of service, could not be waived. If that is right, why should a failure to comply with two of the requirements in paragraph 22.6A(3) be fatal? Mr Jones stresses the importance of the respondent knowing that an appeal has been filed and the importance of the date of the arrest being included because of the tight timetables for removing the person whose extradition has been ordered. That is or may be right. But it does not follow that section 24(4) requires a failure to serve in time or give the date of the arrest to be fatal. Whether or not such failures would preclude relief should be a matter for the court applying the rules relating to waiver, taking all relevant matters into account. In my view section 26(4) is doing no more than requiring the notice of appeal to be filed within 7 days, leaving it to the rules to prescribe the forms and procedures. There is nothing in section 26(4) to show that Parliament intended that a court would not have the power to waive all procedural defects, other than that which relates to the filing of the notice of appeal.
41. Mr Gill submitted that the rules could not reduce the 7 days by requiring the appeal notice to be served before 12 midnight on the seventh day. I do not agree. In my view Parliament intended the rules to provide for such things as effective service.
42. If Mr Jones cannot succeed on the basis of section 26(4), then to succeed he must show that some other section in the Act makes it clear that the intention of Parliament was that the court would have no jurisdiction to waive defects which it would normally have the jurisdiction to waive under the rules. He relies on sections 35 and 213. Both are in very similar terms. Section 35 provides (and I repeat) that, if no notice of appeal under section 26 is given, a person must be extradited before the end of the prescribed period (10 days). Section 35(6) provides that, for the purposes of determining whether a notice of appeal has been given:

(a) any power of a court to extend the period permitted for giving notice of appeal;

(b) any power of a court to grant leave to take a step out of time

must be ignored.

43. But this does not, in my view, help the respondent because, as I have already said, the giving of the notice of appeal relates to the filing and not the service of the notice. Sub-paragraphs (a) and (b) are doing no more than excluding the power to waive procedural defects in relation to the late filing of the notice of appeal.
44. Unconstrained by earlier authority, I have reached the firm conclusion that this court does have the power to waive the procedural defect of late service of the appeal notice on the respondent.
45. Mr Jones submits that even if the court has power to waive the procedural defect under any of the rules identified earlier (see paragraph 18 above) it should not exercise it. In his very helpful speaking note he writes:

In the alternative, any discretionary power that the Court may have to vary time for serving notice of appeal should not be exercised due to the lack of any exceptional circumstances, and since failure to serve notice of appeal on time is solely due to the dilatoriness of those representing Mr. Moulai.

Lamentable failure by the appellant's solicitors to make any attempt to effect service within the permitted period;

The case, therefore, falls within the 1^st limb of the distinction made by Mummery LJ in Anderton (at para. 57): "First, an application by a claimant, who has not even attempted to serve a claim form in time by one of the methods permitted by rule 6.2, for an order retrospectively dispensing with service under rule 6.9. The claimant still needs to serve the claim form in order to comply with the rules and to bring it to the attention of the defendant. That case is clearly caught by Godwin [2002] 1 WLR 997 as an attempt to circumvent the limitations in rule 7.6(3) on the grant of extensions of time for service of the claim form."

Service of the notice could have been effected at any time on the preceding 7 days;

No explanation has been given for the failure to do so;

No circumstances beyond the appellant's solicitors' control which led to late service (electrical blackouts, offices being shut, etc.)

46. I cannot accept the description "dilatoriness" and "lamentable failure". Neither description is appropriate on the facts of this case against the background of such a short period. Service of the notice of appeal could not have been effected at any time within the preceding 7 days. It could not be served until filed and it could not realistically have been filed until at the earliest a few days after the hearing. An explanation for the failure has now been given.
47. The note continues:

Mummery LJ comments at para. 36 of Anderton are highly apposite to this case:

"If the claimants in these cases are debarred from access to the court, it is not in consequence of a system of disproportionately strict procedural rules, which violate the fundamental right of access to the courts: it is as a result of the claimant, or of the claimant's legal adviser, waiting until almost the end of the generous period allowed for issuing and for serving the claim form, and then choosing at that last moment to use a method of service, such as postal service, without regard to the provision of the rules as to when service will be deemed to be effected if this method is used. The arguments appealing to proportionality, to justice and to the CPR's overriding objective of enabling the court to deal with cases justly lend no support to the case against an irrebuttable deemed day of service. Procedural rules are necessary to achieve justice. Justice and proportionality require that there are firm procedural rules which should be observed, not that general rules should be construed to create exceptions and excuses whenever those, who could easily have complied with the rules, have slipped up and mistakenly failed to do so."

48. It is important to note that the time limit with which Anderton was concerned was a generous four months following the issue of the claim form, itself issued at the end of the limitation period. The emphasis on the primacy of certainty and the need to avoid satellite litigation is justified in a case like Anderton but not, in my view, in this case. See also Jurkowska v Hlmad Ltd [2008] EWCA Civ 231, an appeal concerning filing in the EAT of a notice of appeal 33 minutes late, the time allowed being 42 days. The same issues are discussed and late service was waived. Some uncertainty (or fuzziness as Mr Jones described it) may be more compatible with justice than no uncertainty at all in cases such as the present case.
49. Both counsel for the respondent and the CPS, as instructing solicitors, knew an appeal was forthcoming. The CPS knew by just after 4.00 pm that an appeal notice had been filed in time. Apart from the prejudice of not being able to take a technical point, the respondent has suffered no prejudice. If, on the other hand, the appellant would succeed on his appeal, he would have suffered very serious prejudice should his appeal be struck out because of failure to serve the notice of appeal before 4.00 pm. He would have no remedy through no fault of his - he being in prison and having to leave the procedural issues to his solicitors. I find some support for my conclusion in Dorgan v Home Office, one of the individual cases considered in the Anderton case (paragraphs 77- 84). I also take into account that the respondent was served with notice of the appeal within the statutory timetable of 7 days, albeit not within the period laid down under the rules.
50. If the court has jurisdiction to waive the defect then I would exercise one of the three powers identified in paragraph 18 above. It does not seem to me to matter which power is exercised (see e.g. Phillips v Symes [2008] UKHL 1, paragraphs 30-35, per Lord Brown).
51. I should add that Mr Gill also argued that the delay was de minimis and does not prevent the court from having jurisdiction. I prefer the approach which I have identified and applied above.
52. I now examine the cases.
53. In District Court of Vilnius v Barcys [2007] EWHC 615 (Admin); [2007] 1 WLR 3249, the district judge had ordered the respondent's discharge under Part 1 of the Extradition Act 2003, finding that it would be oppressive to order his extradition by reason of the passage of time. The offences alleged against him were very serious. In the words of Latham LJ:

2. The Prosecutor General immediately indicated an intention to appeal the decision to this court pursuant to the provisions of section 28 of the 2003 Act. A notice of appeal was drafted and was ready for filing on the 12^th February 2007. Unhappily, because of the electrical blackout that day at the Royal Courts of Justice, the offices were closed. The appeal was filed the next day, the 13^th February 2007. The notice was not, however, served on Mr Barcys until sent by letter on the 21st February 2007 to his solicitors. At the hearing before us today, Mr Dogra, on behalf of Mr Barcys, submits that this court has no jurisdiction to hear the appeal, as the statutory time limits have not been complied with, and that, as a result of the failure to meet the statutory time limits, the Part 1 Warrant (the warrant issued for the arrest of Mr Barcys in this country) has been "disposed of" by virtue of section 213(1)(a) of the 2003 Act, and is, accordingly, of no effect.

54. An appeal against a discharge is governed by section 28, which is in almost identical terms to section 26.
55. No application had been made for any extension of time. The appellant relied on CPR r. 2.8(5) which provides that where the period specified by the rules, a practice direction, or any judgment or court order ends on a day on which the office is closed, whatever act is required shall be in time if done on the next day on which the court office is open. In the words of Latham LJ:

6. ... It is accepted that this rule cannot apply directly, as the time limit with which we are concerned is a statutory time limit.

56. Having cited Soneji Latham LJ concluded that the intention of Parliament "has been made reasonably clear in section 213." He continued:

8. ... Although that section is an interpretation section, and the phrase "disposed of" is not a phrase which appears in any of the sections with which we are directly concerned, the effect of the section must be that once the seven day period permitted by section 28(5) has passed, there is no extant warrant justifying the continuation of proceedings; the continued detention of the person arrested and section 213(5) is intended to ensure that the warrant cannot be resurrected by any exercise of the court's power to extend the time limits.

57. Latham LJ went on to say:

9. I am, however, somewhat puzzled by the reference to the court's supposed powers. For section 213 is not the only section of the 2003 Act which indicates that the 7 day time limit in section 28(5) is one which Parliament intended to be a strict time limit, the passing of which would bring to an end any right to appeal. A consistent theme throughout, in particular, Part 1 of the 2003 Act, is that a timetable is provided for the taking of the various steps following on from the execution of a Part 1 warrant; and a feature of that timetable is that express power is given to extend time only in relation to some of those steps: see e.g. section 8(5), section 35(4)(b), section 36(3)(b). Perhaps, however, most relevant is the time limit for the start of the hearing of an appeal set out in section 31. This makes provision for time limits to be prescribed by rules of court; and section 31(4) gives an express power to extend the relevant period, which power is replicated in paragraph 22.6A(4) of the Practice Direction set out above. No equivalent power is provided for extending the time for filing and serving the notice of appeal.

10. The only pointer to the contrary seems to me to be that reference in section 213(5) to the powers of the court. Indeed the same words are used in section 32(9) in relation to the time limits for appeals to the House of Lords, and in section 35(6) and section 36(6) dealing with the time limits for giving effect to orders for extradition. It might be said that these subsections clearly envisage the court having the power to extend the time limits, quite apart from any express powers given by the 2003 Act itself, and that accordingly where those words do not appear, as in section 28, Parliament envisaged that such a power would be available.

11. I acknowledge the apparent force of this argument. But it begs the question as to what power the court does have to extend time in the circumstances where there is an express statutory time limit. Section 28 does not in itself provide any power to extend time. And no other general provisions in the 2003 Act giving such a power was drawn to our attention In so far as it brings into play rules of court, it only does so in the context of defining how a notice of appeal is "given". The rules to which I have already referred make it plain in paragraph (3)(a) that this is to be done by way of filing and serving the relevant notice. No power is given to extend the statutory time limit. Further, as with the provisions of the CPR Rule 3.9, the court's general powers of management in Rule 3.1(2)(a) only give power to the court to extend time for compliance with a rule, practice direction or court order. It follows, in my view, that there is no power to extend the statutory time limit in section 28(5).

58. Thus Latham LJ reached the conclusion, with which Davis J concurred, that there was no power to extend the time limit for filing the notice of appeal, albeit that the failure to file it was due to circumstances outside the control of the appellant (cf. R. (Jeffrey) v Warwick Crown Court [2002] EWHC 1765 Admin, where I held that Parliament had not intended that the Crown Court would have no jurisdiction to entertain a prosecution appeal against a magistrates' court decision granting bail where, through no fault of the prosecution, it had been unable to serve the required notice within the statutory time limit of two hours).
59. Latham LJ then went on to deal with the late service of the notice of appeal on the respondent. He said:

12. I reach that conclusion [ie that there was no power to extend the time limit] without any regret in relation to the requirement to serve the notice within seven days. That is a matter wholly within the control of the appellant. In the present case, service was well out of time; and there is no explanation before us as to the reason for the failure to effect service. But the failure to file the notice was clearly not the fault of the Prosecutor General. If that had been the only failure to comply with the statutory time limit in the present case, to hold that the consequence of the office being unexpectedly closed was that the notice of appeal was not filed in time would have been an unfortunate and unsatisfactory consequence of the construction, which I consider to be inevitable, of section 28(5) of the 2003 Act.

60. Whilst not disagreeing with the proposition that the time limit should not have been extended given the lateness of the service of the appeal notice, in my respectful view, the proposition that a failure to serve the appeal notice cannot be waived is, for the reasons which I have set out earlier, plainly wrong. I should add that the position was in any event obiter in the light of the decision about the filing of the appeal notice.
61. I turn to Mucelli v Government of the Republic of Albania [2007] EWHC 2632 (Admin), a decision under Part 2 of the Act. Having found in favour of the appellant on the merits, Richards LJ, with whom Aikens J agreed, decided that the court had no jurisdiction to hear the appeal. Permission to appeal has been refused by the House of Lords, but that does not indicate implied approval of the decision: see In re Wilson [1985] AC 750, at 756.
62. Section 103(9) provides:

"Notice of an appeal under this section must be given in accordance with rules of court before the end of the permitted period which is 14 days starting with the day on which the Secretary of State informs the person under section 100(1) or (4) of the order he has made in respect of the person."

The Secretary of State informed the appellant of the extradition order on 18 July. On 31 July the appellant's notice was filed with the Administrative Court, within the 14 days but on the last day. On the next day the appellant's solicitors wrote a letter dated 1 August serving the notice on the respondent. Due to some administrative error within the solicitor's office, the letter and enclosures were not put in the post until 10 August, arriving three days later. Thus service was some 12-13 days out of time.

63. Richards LJ said:

The rules of court applicable to appeals under s.103 are contained in para 22.6A of the Practice Direction to CPR Part 52, the most important provisions of which are these:

"(5) Where an appeal is brought under section 103 of the Act, the appellant's notice must be filed and served before the expiry of 14 days, starting with the day on which the Secretary of State informs the person under section 100(1) or (4) of the Act of the order he has made in respect of the person.

…

(12) Where an appeal is brought under section 103 … of the Act, the appellant must serve a copy of the appellant's notice on –

(a) the Crown Prosecution Service; and

(b) the Home Office,

if they are not a party to the appeal, in addition to the persons to be served under rule 52.4(3) and in accordance with that rule."

CPR rule 52.4(3), to which reference is there made, provides that unless the appeal court orders otherwise, an appellant's notice must be served on each respondent "(a) as soon as practicable, and (b) in any event not later than 7 days, after it is filed".

Reading those provisions together and in the context of the framework established by the Act, it would seem that the normal requirement in rule 52.4(3) to serve the appellant's notice on each respondent as soon as practicable, and in any event not later than 7 days, after it is filed is displaced by the specific requirement in para 22.6A(5) of the practice direction to file the notice and to serve it on each respondent before the end of 14 days starting with the day on which the Secretary of State informs the requested person under s.100(1) or (4) of the order he has made. ...

64. Richards LJ then set out part of section 213 and considered Barcys. He went to say:

In R (on the application of Mendy) v Crown Prosecution Service [2007] EWHC 1765, Collins J held that the reasoning in Barcys applied equally to an appeal by the requested person under s.26(4) as to an appeal by the requesting authority under s.28(4); and that, since the requested person had filed his notice of appeal out of time, the court had no jurisdiction to entertain it.

72. ... Application of the reasoning in Barcys and Mendy would seem to lead inevitably to the conclusion that notice of appeal was given out of time and that this court therefore has no jurisdiction to entertain the appeal.

73. Mr Cooper submitted that Barcys and Mendy were distinguishable or were wrongly decided and should not be followed. I am satisfied, however, that s.103(9) is materially identical to ss.26(4) and 28(4), even though the permitted period under it is longer, and that the reasoning in Barcys and Mendy bites upon it in exactly the same way. It is true that there is a factual difference between the cases, in that the appellant's notice in this case, unlike that in both Barcys and Mendy, was filed in time, but in each case the notice was served out of time and the reasoning bites equally upon service as it does upon filing. I am also satisfied that this court should follow Barcys and Mendy. No detailed argument has been addressed to us to support the contention that they were wrongly decided, and the right course is for this court to follow them unless convinced that they were wrongly decided (R v Manchester Coroner, ex p. Tal [1985] QB 67).

65. In this case Mr Gill has submitted detailed argument to support the contention that Barcys and Mendy were wrongly decided. He does not accept that "the reasoning [in these cases] bites equally upon service as it does upon filing".
66. Richards LJ then considered r. 6.9. He said:

74. In the course of the hearing the court raised for consideration whether it might be possible to rely on the power to dispense with service under CPR rule 6.9 as a means of tempering the inflexibility of the conclusion reached in Barcys and Mendy. ...

67. Having considered amongst other cases Godwin and Anderton (but not Phillips v Symes (which had not been decided by then), Richards LJ said:

The situation here seems to me to be caught squarely by the principle in Godwin. The effect of the relevant statutory provisions, as held in Barcys and Mendy, is that notice of appeal must be given within the permitted period which cannot be extended. The statute does not address the possibility of dispensing with service and cannot be read as impliedly removing the power to dispense with service. But the reality is that the appellant needs an extension of time for service, which the statute precludes, and that the exercise of the power to dispense with service would have the same consequence as an extension of time and would circumvent the statutory time-limit. Furthermore, on the facts there was no attempt to serve the appellant's notice in time: even if an attempt at service was made on 1 August, it took place just outside the permitted period. The case is therefore directly comparable to the first category identified in Anderton, which was held to be clearly caught by the principle in Godwin.

68. Richards LJ also referred to the facts of the case:

Another potentially relevant consideration, as mentioned in Anderton at para 59, is the explanation for late service. In this case the explanation is a lamentable failure by the appellant's solicitor to effect service within the permitted period. There had been ample time for the purpose. A notice of appeal under s.103 could have been given at any time after the judge's decision of 4 June; and Shearman Bowen & Co were instructed by 9 July and had the remainder of July in which to give such notice. Following notification on 18 July of the making of the extradition order it must have been appreciated that time was running out. In the event the appellant's notice was filed on the last possible day and was not served until it was too late.

69. Having heard much fuller arguments than those presented to the Divisional Court presided over by Richards LJ, I have no doubt, for the reasons which I have already set out, that failure to serve the notice of appeal in time constitutes a procedural defect which can be waived under the rules.
70. During the hearing we became aware of another judgment of the Divisional Court in Gercans v The Government of Latvia [2008] EWHC 884 (Admin) (Richards LJ and Swift J). Following the hearing we received a copy of the judgment. On Thursday 20 December 2007 a District Judge had ordered the appellant's extradition under Part 1 of the Act. When the solicitor sought to file the appeal notice on December 24^th she found the RCJ locked. By the time the RCJ had reopened after Christmas it was too late. The notice was filed on the next business day, 27 December, and the filed appeal notice was served on the respondent by a letter from the appellant's solicitors dated 27 December and received on 31st December. In addition, on 27 December a fax was sent by the appellant's solicitors to the Crown Prosecution Service with a cover sheet and the front page of the notice of appeal, the fax containing an indication that the full enclosure had been sent by Document Exchange.
71. The Court held that it had no jurisdiction to hear the appeal.
72. Richards LJ said: "I do not see how, in the light of Barcys and those subsequent cases, it can be open to this court to treat the time limit in section 26(4) as extendable." Having expressed his concern about the rigid operation of the statutory time limit in circumstances where an appellant has been prevented from complying with that time limit through no fault of his own but by the unforeseen closure of the court office, Richards LJ continued:

11. That may not have given rise to any actual injustice in the particular circumstances of the present case, because the appellant was represented by solicitors and the solicitors could have filed the notice of appeal by fax, even though the court office was closed. The Practice Direction to Part 5 of the Civil Procedure Rules provides in paragraph 5.3 that a party may file a document at court by sending it by fax. A potential drawback is that if it is delivered by fax after 4 pm it will be treated as filed on the next day the court office is open. That should not be a problem here, because the email sent to the Administrative Court Office explaining what had happened on 24th December was sent just after midday, so a fax could easily have been sent on 24th December which would have been treated as delivered on the same day and would have resulted in the timely filing of the appellant's notice. The Practice Direction provides that a fax should not be used, except in unavoidable emergencies, to deliver a document which attracts a fee; but where such a situation arises, the fax should explain the emergency and include an undertaking as to payment of the fee. That provision would not have stood in the way of filing in the circumstances that arose on 24th December.

73. He continued:

12. I am doubtful, however, whether that is truly an end to the matter because this case does highlight the potential unfairness that can arise from a court office being closed, and one can readily imagine that although solicitors would be aware of the possibility of filing by fax and would have a fax, that might not be true of an appellant acting in person. The position here is that not only was the office closed between 24th and 26th December, but it must also have been closed during the immediately preceding weekend of 22nd and 23rd December. So in practice the appellant had only two days from the District Judge's order in which to file the notice at the court office. I would wish to see further consideration being given to how the statutory time limit is intended to operate in those circumstances.

74. Richards LJ expressed his concern about the conclusion in Barcys that the filing of the appeal notice in that case was out of time even though the RCJ had been closed due to an emergency. He said that, in his view, it remained arguable that the effect of r. 2.8(5) is that where the period specified for filing a notice of appeal ended on a day when the court office was closed, the filing was in time if done on the next day when the court office was open.
75. I interpose to say that in Gercans the court was not referred to Van Aken (see paragraph 26 above) or Swainston v Hetton Victory Club Ltd [1983] 1 All ER 1179. The effect of these cases (about neither of which have we heard argument) appears to be that r. 2.8(5) is not applicable if hand delivering the appeal notice to the court offices on a non-business day is physically possible, for example by putting the notice through a letter box (notwithstanding the provisions of, for example, 5PD 5.2 which appear to envisage filing only whilst the court offices are open). These authorities, however, support what may be thought to be the surprising conclusion of Richards LJ that an appeal notice may be filed by faxing it to the court office when the office is closed (provided that the fax is delivered by 4.00 pm an anomaly noted by Ward LJ in Van Aken, paragraph 60). On the other hand in Mendy, Collins J held that handing the appeal notice to a security guard at the RCJ at 11.50pm on the last day (the 9^th of July) did not constitute filing. Filing occurred (so Collins J appears to have held) only when the Administrative Court Office received the notice on the next day.
76. In any event Van Aken and Swainston are of little help to an appellant in an extradition case if the notice of appeal to be served on the respondent is the notice of appeal stamped as received by the court office. It should be noted that r. 6.7 provides a quite different regime for service- e.g. a document delivered after 5.00 pm or on a non-business day shall be treated as served on the next business day. It may be thought anomalous to have two different regimes for filing and service and unsatisfactory that it is case law (e.g. Van Aken and Mendy) rather than a rule to which one has to turn to ascertain whether an appeal notice may be filed when the court offices are closed.
77. Richards LJ then turned to the issue of late service.

17. But that brings me to the issue of late service in the present case, an issue which, in my judgment, is as fatal to the appellant's position as it was to the appellant in Barcys, and which therefore makes it unnecessary to reach any concluded view on the question whether the notice of appeal in this case was filed in time. On no view can it be said that the notice of appeal in this case was served in time. It was not posted to the Crown Prosecution Service until 27th December at the earliest, the date of the covering letter. The deemed date of service, in so far as one is concerned with the transmission of the documents by post or by Document Exchange, will have been no earlier than the second day after posting, that is to say 29th December. The letter did not in fact arrive until 31st December. The fax sent on 27th December did not amount to service, including as it did only the first page of the notice of appeal. No explanation has been given as to why proper service was not effected on the Crown Prosecution Service as agent for the respondent court earlier than it was.

18. Barcys is authority for the proposition that time for service cannot be extended. Mucelli came down against dispensing with service on the facts of that case when no attempt had been made to serve the notice within the time limit, and to dispense with the requirement of service would have been an unacceptable circumvention of the statutory time limit. The same reasoning applies here, and in my view there is nothing in the circumstances of the case that would warrant what would be a highly exceptional exercise of discretion in the appellant's favour.

19. For those reasons, I have reached the conclusion that there was a failure to comply with the statutory time limit, that the failure cannot be cured, and that the consequence of the failure is that this court does not have jurisdiction to entertain the appellant's appeal. Accordingly, I would dismiss the appeal.

78. As I have said it appears that the appeal notice which must be served is the appeal notice which was filed and stamped as received by the Administrative Court Office. If that is right and given the closure of the office on Monday 24 December, then it was impossible for the solicitor for the appellant Gercans to serve the filed and stamped appeal notice on the respondent unless the appeal notice had been filed in the Administrative Court Office during working hours on Friday 21 December, the day after the decision was made to order the appellant's extradition. Such a tight timetable seems to me quite unrealistic and unfair and if imposed by the rules might, as Mr Gill submits, be ultra vires (see e.g. R. v Secretary of State for the Home Department, ex parte Saleem [2001] 1 WLR 443).
79. We have made our own enquiries as to why the offices were closed on 24 December 2007. Under the "PD- Court Offices", 2PD.1, the offices of the Supreme Court shall be open except on Saturdays and Sundays, Good Friday and the day after Easter Monday, Christmas day and, if that date is a Friday or Saturday, then 28 December, Bank holidays, and such other days as the Lord Chancellor, with the concurrence of the Heads of Division, directs. Our enquiries show that the RCJ was closed on 24 December because the civil servants who would otherwise be staffing the office were given a "privilege day" and that the Lord Chancellor, in accordance with the PD, directed that the offices would not be open. It should be noted that December 24 remained a business day for the purposes of the rules relating to service (see r. 6.7). The announcement that the Supreme Court would be closed on December 24 was made in late November on the HMCS website (http://www.hmcourts-service.gov.uk/cms/notices.htm).
80. For the reasons which I have already given, Gercans is, in my view, wrong in so far as it holds that there is no power to extend the time for service of the notice of appeal. The facts of the case show how unjust it would be if there is no power to extend the time or otherwise waive the irregularity. It also demonstrates the urgent need to revisit Barcys on the issue of the late filing of the notice of appeal.
81. In conclusion, I would in the instant appeal exercise the powers under r. 3.1(2)(a) to extend the time limit for service of the notice of appeal by 7 minutes to 4.07 pm on 20 March 2007. Alternatively I would exercise the power under r. 3.10 to remedy the error or the power under r. 6.9 to dispense with service.

Mr Justice Maddison:

82. I agree. Had Parliament intended that Section 26 (4) of the 2003 Act should apply both to the filing and the service of the notice of appeal in cases such as this, it could easily have said so by using the words "notice of appeal must be filed and served". Instead it chose to use the word "given" and it is sufficiently clear not only from the explanatory note to section 26 but more particularly from the terms of section 213(3) to which my lord Hooper L.J. has referred, that "given" means "filed".
83. Notwithstanding this decision, it is my view that practitioners should recognise the importance of complying with the 7 day limit provided in paragraph 22.6A(3)(a) of Practice Direction 52 for the service of the notice of appeal in such cases. The general tenor of the 2003 Act is that extradition requests should be dealt with speedily. Though each case must of course be determined on its own facts, I would have thought it unlikely that the time for service would be extended or that service would be dispensed with (as in this case) unless the circumstances were so unusual and the delay in service so short that the respondent to the appeal concerned could not sensibly be said to have suffered any significant prejudice (as in this case).
84. However, I would think it unfortunate if, the court were powerless ever to extend the time for or to dispense with service of any notice of appeal, whether by a detained person or by an authority seeking that person's extradition; and I agree with Hooper L.J. that section 26 (4) of the 2003 Act, read together with the provisions of the Criminal Procedure Rules and the Practice Direction to which he has referred, do not compel that conclusion.