England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		9 July 2009

1. LORD JUSTICE RICHARDS: The claimant was arrested in this country pursuant to a European Arrest Warrant issued by the Paphos District Court in Cyprus. He was brought before City of Westminster Magistrates' Court where District Judge Tubbs made an order pursuant to section 21(3) of the Extradition Act 2003 for his extradition. The order was made on Monday 28 July 2008. By section 26(1) and (4) of the 2003 Act, there is a right of appeal to the High Court against such an order, but notice of appeal must be given in accordance with rules of court before the end of the permitted period, which is seven days starting with the day on which the order was made. On Monday 4 August 2008, the claimant's solicitors attempted to file a notice of appeal at the Administrative Court Office in the Royal Courts of Justice. The Office refused to issue the notice, on the basis that it was out of time and the court lacked jurisdiction to entertain it. By this application the claimant challenges that refusal. The matter is listed as an application for permission, with the substantive judicial review application to follow immediately if permission is granted. The extradition order itself has been stayed pending the determination of these proceedings.
2. On behalf of the Administrative Court Office, Mr Chamberlain has taken the point, which in my view is well-founded, that judicial review is a wholly inappropriate means of challenging a decision of this kind. In his written submissions he starts by observing that it is the long-established practice of the Office to refuse to issue a notice of appeal or other originating application filed outside a non-extendable statutory time limit. The practice is said to serve the important objective of ensuring that the court lists do not become clogged up with appeals and applications which the court lacks jurisdiction to entertain. What we are told about the practice accords with my own understanding of the position, and I regard the practice itself as perfectly sound. If a notice or application is considered to have been filed out of time, and in consequence the court is considered to lack jurisdiction to entertain it, the point is best taken at the outset. The question is how to resolve a dispute should one arise at that early stage.
3. The staff of the Administrative Court Office are court officers as defined in CPR rule 2.3(1). Where a step is to be taken by a court officer, he has the power under rule 3.2 to consult a judge before taking that step, and the step may be taken by a judge instead of the court officer. If therefore a member of staff indicates that he or she is minded not to issue a notice of appeal, it is open to the party concerned to request that the matter be referred to a judge under that rule. If the matter is so referred, a judge of the court can take the relevant decision.
4. Moreover, decisions made by officers of the High Court are subject to the supervision of the judges of that court in the exercise of the court's inherent jurisdiction to control its own processes. Thus, in R v Taxing Officer, ex parte Bee-Line Roadways International Limited, The Times, 11 February 1982, Woolf J (as he then was) refused to entertain an application for judicial review of a decision of a Supreme Court Taxing Master, but held there to be "an inherent power in the court to control its own proceedings conducted by officials of the court, such as taxing masters, as delegates of the judges". In relation to the issue of notice of appeal, I doubt whether the staff of the office can be said to be acting as delegates of judges in the sense envisaged by Woolf J in that passage, but I see no reason why the inherent jurisdiction of the court should not extend to control of such activities.
5. If, therefore, a member of the Administrative Court Office staff declines to refer to a judge under rule 3.2 a disputed question concerning issue of a notice of appeal, it is open to the party concerned to issue an application notice requesting the court to direct that the notice of appeal be issued. Such an application is made not under the rules governing judicial review, but under the court's inherent jurisdiction. An application of that kind can be made ex parte. If it is to be made on notice or if a judge directs that there be a hearing on notice, then the appropriate respondent, as it seems to me, will be the other party or parties to the underlying proceedings. In an extradition case such as the present, that will generally be the requesting state or authority, or the CPS as the representative of that state or authority. In my judgment, the Administrative Court Office should not be a respondent to the application and no representation is required on its behalf; nor should any further participation by the Office be required.
6. The approach I have indicated is in substance that which was adopted in Amoako [2006] EWHC 1572 (Admin), where Ouseley J heard and determined an application challenging the rejection by the Administrative Court Office of a notice of appeal in extradition proceedings on the ground that the notice was out of time. I note that the case in the transcript that we have was given a title appropriate to judicial review proceedings, namely R (on the application of Amoako) v DPP. I consider that to have been technically incorrect, though nothing turns on it. It appears to have been an ex parte application without a respondent. In a case of that sort, as I have indicated, if a respondent is called for, then the DPP or the CPS, not the Administrative Court Office, would be the appropriate respondent. The case of Amoako also shows how speedily a dispute of this kind can be resolved. It appears that the matter was dealt with by the judge on the day of attempted filing.
7. For those reasons, I would refuse permission to apply for judicial review of the decision of the Administrative Court Office. Equally, however, since we are seized of the underlying issue, it is open to us, as judges of the court and in the exercise of the court's inherent jurisdiction, to determine whether a notice of appeal should have been issued and, if so, whether it is appropriate to direct the issue of the notice. Although the wrong procedure has been used by the claimant, it can readily be treated as an application under the inherent jurisdiction, and in practice Mr Collis, on behalf of the claimant, acknowledging the force of the submissions made by Mr Chamberlain, did not seek to press his arguments in support of judicial review but was content with the indication by the court that it would be prepared to consider the substantive issue under its inherent jurisdiction.
8. I therefore turn to the substance of the dispute before us. As already stated, the statute requires notice of appeal to be given in accordance with rules of court before the end of the period of seven days starting with the day on which the district judge's order was made. The relevant provisions of the CPR are to be found in paragraph 22.6A of the Part 52 Practice Direction, which provides:

"(1) In this paragraph, 'the Act' means the Extradition Act 2003.

(2) Appeals to the High Court under the Act must be brought in the Administrative Court of the Queen's Bench Division.

(3) Where an appeal is brought under section 26 or 28 of the Act –

(a) 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;

(b) the appellant must endorse the appellant's notice with the date of the person's arrest;

(c) the High Court must begin to hear the substantive appeal within 40 days of the person's arrest; and

(d) the appellant must serve a copy of the appellant's notice on the Crown Prosecution Service, 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."

9. In refusing to issue the claimant's notice of appeal when his solicitors filed it on 4 August 2008, the Administrative Court Office acted in accordance with the law as it was understood at the time. There were several Divisional Court decisions, including judgments of my own, to the effect that a strict non-extendable time limit of seven days applied to cases under Part 1 of the 2003 Act and that, if the last day fell on a day when the office was closed, then the notice had to be filed by the last working day before that. As to the latter point, see in particular District Court Of Vilnius City v Barcys [2007] EWHC 615 (Admin), albeit that in Gercans v Government of Latvia [2008] EWHC 884 (Admin) I expressed some doubt on the point and indicated that it ought perhaps to be re-examined. On the basis of the law as then understood, the last day for filing in the claimant's case fell on Sunday 3 August, and it was too late to file on Monday 4 August.
10. That understanding of the law was, however, changed in one highly material respect by the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2, [2009] 1 WLR 276. In paragraph 84 of his opinion in Mucelli, Lord Neuberger of Abbotsbury, with whom the majority of their Lordships agreed, stated that where the relevant office is closed during the whole of the last day of service, the notice will be validly filed if given at any time during the first succeeding day on which the office is open, that is the next business day. This means that where, as here, the last day for filing would otherwise be a Sunday, when the office is closed, the notice will be filed in time if filed on the following Monday. That is what happened in this case. It follows that the claimant's notice of appeal was filed in time and, as we now know as a result of the decision of the House of Lords in Mucelli, the notice should have been issued by the Office on that day.
11. Accordingly, if any useful purpose could be served by the issue of a notice of appeal now, back-dated to 4 August 2008 when the notice was filed, I would be minded to direct issue of that notice. In order to decide, however, whether any useful purpose would be served by that course, I must turn to consider the question of service.
12. Under the statute and the rules a notice of appeal must be served as well as filed within the seven-day period. What Lord Neuberger said in Mucelli about filing being validly effected on the Monday when the last day for filing falls on a Sunday when the Office is closed was expressed to apply equally to service. Accordingly, if the notice of appeal in the claimant's case had been served on Monday 4 August, the date when his solicitors filed it, service would have been within the statutory time limit. There would be a valid appeal which the court had jurisdiction to entertain.
13. Unfortunately for the claimant, no attempt was made to serve the notice on Monday 4 August, or indeed thereafter, save insofar as it was included in the bundle of documents served on 12 August as part of the present judicial review claim. On the face of it, therefore, the requirement to serve the notice within the seven-day period has not been met, with the consequence that the High Court does not have jurisdiction to entertain an appeal from the extradition order, even though the notice of appeal was filed in time.
14. The arguments advanced by Mr Collis in an attempt to get round that problem proceed along these lines. He submits that the apparent intention of the CPR is that a notice of appeal should be served after it has been filed, and that service should be of a sealed copy of the notice as filed. As Hooper LJ said in the Divisional Court in Moulai v Deputy Public Prosecutor in Creteil France [2008] EWHC 2632 (Admin) at paragraph 78: "... 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." In this case, however, since the Office refused to issue the notice, it was not possible to serve a sealed copy. Given this, and also in view of the fact that in Moulai the Divisional Court considered that an extension of time could be obtained for service of the notice, it is submitted that it would be unreasonable for jurisdiction to entertain an extradition appeal to be refused by reason of the claimant's failure to serve the notice within the seven-day period.
15. In the circumstances, it is submitted that what the court should do is make an order for substituted service. That submission arises out of a passage in Lord Neuberger's opinion in Mucelli at paragraph 79 where he refers to the possibility of an order for substituted service and states:

"... on exceptional facts (eg where the respondent was evading service), the court might well order that service could be effected in a way that may well lead to the notice not being received by the respondent within the 7-day period, or even - conceivably - at all."

16. Mr Collis submits that this court can and should make an order now for substituted service, of a kind that would lead to the respondent in this case not having received the notice within the statutory seven-day period. To put it in concrete terms, what he submits is that the court should make an order now that service of the notice of appeal by inclusion in the documents served in the course of the present judicial review proceedings should count as service of the notice of appeal for the purposes of the 2003 Act.
17. There are several problems about that line of argument. First, the basic rule, confirmed by the House of Lords in Mucelli, is that the notice of appeal must be served within the seven-day period. In this case there was no service of the notice of appeal within that period or, at the earliest on any view, until more than a week after the period had expired. It is true that a sealed copy could not in practice be served within the seven-day period because of the Office's refusal to issue a notice, but an unsealed copy could have been served. From what Mr Collis has told us it appears that the decision not to serve the notice of appeal on 4 August was not based on a view that a sealed copy was required, but on two considerations: first, that it was thought that the Administrative Court Office was in fact right in law in having declined to accept the notice on 4 August; and secondly, because it was thought that, so far as service was concerned, it would be possible, if necessary, to seek and obtain an extension of time. Be that as it may, the fact is that an unsealed copy could have been served within the statutory time limit. It may well be that an unsealed copy would have sufficed. That is a point to which I will return in a moment. But if, as here, there has been no service at all within the statutory period, there is no possibility of compliance with the requirement as to service.
18. It seems to me that the suggestion of substituted service is based on a misunderstanding of Lord Neuberger's opinion. In paragraph 79 Lord Neuberger was plainly contemplating a situation in which the order for substituted service was made within the seven-day period but the notice of appeal did not in fact reach the respondent until the seven days had expired. In that exceptional situation, in his view, it could still properly be held that there had been service within the seven-day period. He did not have in mind an order for substituted service made many months after the seven-day period had expired.
19. There is, in any event, Court of Appeal authority that an order for alternative service cannot be made retrospectively: see Elmes and Hygrade Food Products Plc [2001] EWCA Civ 121 at paragraph 13.
20. Even if a retrospective order were possible in other contexts, I do not think that one could properly make such an order in the present context, when it would have the effect of circumventing the statutory time limit. The House of Lords has made clear the absolute nature of that time limit and the unavailability of other means of avoiding the effect of the statute, whether by extensions of time or dispensing with the requirement of service. It seems to me that a retrospective order for substituted service would fall within the same vice as those other procedures and would be contrary to the legislative intention.
21. The oddity of the submission advanced is further highlighted by the fact that what Mr Collis invites the court to do is to treat service effected in the judicial review proceedings on or about 12 August as sufficient compliance with the statute when the statutory time limit had expired over a week before 12 August, namely on 4 August.
22. It seems to me, for those various reasons, that counsel's submissions in respect of service are wholly unsustainable.
23. Although no decision on the point is required, I think it right to revert to the question whether in an extradition appeal it is necessary to serve a sealed copy of the appellant's notice. In terms of practicalities this may sometimes be very difficult to achieve, given the very tight and identical seven-day deadline for filing as well as for service.
24. In an ordinary appeal the rules do provide that a sealed copy of the appellant's notice should be served. Thus paragraph 5.21(1) of the Part 52 Practice Direction provides that, except where the appeal court orders otherwise, a sealed copy of the appellant's notice must be served in accordance with the timetable prescribed by rule 52.4(3). Rule 52.4(3) is the general rule relating to service. It provides that an appellant's notice must be served as soon as practicable and in any event not later than seven days after it is filed. The rule itself therefore envisages a sequential approach of filing followed by service, and it is readily understandable why, in that context, provision should be made for service of a sealed copy of the notice. But that rule does not apply to extradition appeals which, as already indicated, are governed by paragraph 22.6A of the Part 52 Practice Direction. By paragraph 22.6A(3)(a), filing and service of the appellant's notice in an extradition appeal must both be done within seven days of the order. It is not said that service should be of a sealed copy of the notice as filed, and the fact that the same deadline applies to each might be thought to contra-indicate a requirement of service of a sealed copy of the notice. Hooper LJ in Moulai thought that a sealed copy had to be served, but it is not clear that that was the subject of detailed argument in that case.
25. I have said that no decision on the point is necessary. I simply observe that I am not convinced on the basis of what I have seen that service would be defective if an unsealed copy of the notice were served within the seven-day period, provided of course that it were in identical terms to the notice as filed. Even if service of an unsealed copy is technically defective, it may well be that the remedial power in CPR rule 3.10 could be invoked to cure the defect without offending the strict requirements of the 2003 Act.
26. Our attention has been drawn by Miss Nice on behalf of the judicial authority to the case of Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin), at paragraph 21 of which the court expressed the view that the court has power under rule 3.10 to make an order to remedy an error in the appellant's notice as to the date of arrest endorsed on that notice. It may well be that a similar power to remedy an error would exist where there has been service of an unsealed copy if, and I stress "if", the rules in fact require service of a sealed copy.
27. Counsel thought that the issue of service of an unsealed copy might have been addressed by the Divisional Court in Sciezka v Court Judge of Sad Okreowy, Kielck, Poland (judgment of 4 June 2009), but no transcript or details were available to us.
28. Returning to the present case, for the reasons I have given I am satisfied that the notice of appeal was served here outside the statutory time limit and that the defect is not capable of being cured. It follows that the High Court lacks jurisdiction to entertain an appeal against the District Judge's extradition order. In those circumstances no useful purpose would be served by directing the Administrative Court Office to issue the notice of appeal, and I would therefore decline so to direct.
29. Accordingly, I would take no further action in the case beyond refusing permission to apply for judicial review of the Office's refusal to issue the notice of appeal.
30. MR JUSTICE MADDISON: I agree.
31. LORD JUSTICE RICHARDS: Any further order required?
32. MR CHAMBERLAIN: No application on my part, my Lord. I do make clear though that the same approach would not necessarily be taken in the future, particularly in the light of your Lordship's clear judgment.
33. LORD JUSTICE RICHARDS: A marker has been put down and will be on the transcript. Thank you all very much indeed.
34. MR CHAMBERLAIN: My Lord, I wonder if I could just raise one matter that my instructing solicitor has raised, and that is that I think I am right in saying that there was a stay that was imposed on the extradition order.
35. LORD JUSTICE RICHARDS: Yes, I referred to the stay in my judgment because I had seen a reference to that.
36. MR CHAMBERLAIN: I am not sure whether it is necessary for your Lordship formally to discharge --
37. LORD JUSTICE RICHARDS: It almost certainly would have been expressed in terms of "pending determination of the judicial review proceedings" and will therefore lapse. But for the avoidance of doubt, we should order that the stay is lifted. Thank you.