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
		4th June 2009

1. LORD JUSTICE SULLIVAN: On Monday, 12th January 2009 District Judge Tubbs ordered the applicant's extradition to Poland. The applicant's solicitors attempted to give notice of an appeal against that order within the 7-day period prescribed by section 26(4) of the Extradition Act 2003 ("the Act"). The respondent contended that the notice of appeal had not been given within time and signified an intention to remove the applicant to Poland on 26th January 2009.
2. The applicant applied for an injunction to prevent removal. On 23rd January 2009 the Divisional Court (Maurice Kay LJ and Simon J) granted the applicant an interim injunction preventing his removal and ordered that his substantive application for injunctive relief should be listed for hearing separately from his appeal under the Act.
3. The Divisional Court also ordered the parties to agree a chronology of events for the period beginning with the District Judge's order for extradition on 12th January 2009 and ending on 20th January 2009. That was done and we now have to consider the applicant's application for injunctive relief. Whether he is entitled to that relief depends on whether he made a valid application to appeal against the District Judge's order within the 7-day period.
4. The agreed chronology is as follows:

"Monday, 12th January 2009, 15:00: City of Westminster Magistrates' Court: District Judge Caroline Tubbs ordered the applicant's extradition to Poland.

Monday, 19th January 2009, 11:15 (approximately): The applicant's solicitors attended the Administrative Court office in order to file the applicant's notice of appeal (and supporting skeleton argument) against the extradition order. A senior legal manager at the Administrative Court office (Martyn Cowlin) refused to accept the notice, asserting that the 7-day period for filing the notice had expired and the notice was therefore out of time.

Monday, 19th January 2009, 14:59: Fax of unsealed copy of appellant's notice of appeal received from applicant's solicitors by Crown Prosecution Service (CPS) as representative of the respondent.

Monday, 19th January 2009, 15:00: The applicant's solicitors faxed the appellant's notice of appeal to the Administrative Court office, which accepted the notice for filing shortly afterwards at 15:03.

Monday, 19th January 2009, 15:30: The applicant's counsel spoke by telephone to Martyn Cowlin of the Administrative Court office, urging him to accept the notice for filing. Mr Cowlin agreed to accept the notice.

Monday, 19th January 2009, 16:26: CPS e-mailed Martyn Cowlin of the Administrative Court office asking whether the applicant's notice of appeal had been filed in time.

Monday, 19th January 2009, 16:55: Martyn Cowlin e-mailed CPS confirming that, following discussion with the applicant's counsel, he 'now agreed (rightly or wrongly) that the appeal should be issued'.

Tuesday, 20th January 2009, 11:42: The appellant's solicitors attended at the Administrative Court office and lodged a hard copy of the applicant's notice of appeal.

Wednesday, 21st January 2009: The Appellate Committee of the House of Lords delivered its opinions in Mucelli (Appellant) v Government of Albania (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice) Moulai (Respondent) v Deputy Public Prosecutor in Creteil, France (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice) [2009] UKHL 2.

Wednesday, 21st January 2009, 12.48: CPS e-mailed Simon Slidders, a senior legal manager at the Administrative Court Office, attaching a copy of the Mucelli and Moulai judgment, explaining that, on the basis of this decision, the deadline for filing and service of the applicant's notice of appeal was midnight on Monday, 19th January 2009 and asking whether this deadline had in fact been met. The e-mail referred [to] arrangements which had been made for the applicant's surrender on Monday, 26th January 2009 and stated that the CPS was keen that these should be maintained if in fact the notice had not been lodged before the deadline.

Wednesday, 21st January 2009, 15:43: Simon Slidders e-mailed CPS stating that 'a faxed copy of the notice of appeal was lodged at 3.03 pm on Monday, 19th January...' adding 'whether the court was right to refuse to issue the appeal on Monday, 19th has not yet been decided judicially'. He went on to state 'Hard copies of the appellant's notice were lodged on the morning of 20th January, when the appeal was issued at 11.42 am...'

Thursday, 22nd January 2009, 12:20: Faxed copy of applicant's notice of appeal sealed on 20th January 2009 was received by CPS from applicant's solicitors."

The agreed chronology then refers to the grant of the interim injunction on Friday, 23rd January 2009.

5. Mucelli is now reported at [2009] 1 WLR 276. Lord Neuberger, with whom Lord Phillips, Lord Carswell and Lord Brown agreed, said in paragraph 41 of his opinion that three questions of principle arose:

"(a) Must the appeal notice be both filed in the High Court and served on the respondent within the 7 or 14 days? (b) Is the court precluded from extending time for the filing and/or the service of the appeal notice? (c) What happens if the office of the recipient of the notice is closed before the last moment for service?"

6. Lord Neuberger's answers to questions (a) and (b) were in the affirmative:

"72. For these reasons, I conclude that an appellant's notice must be served, as well as filed, within the 7-day period referred to in section 26(4)...

80. For these reasons, I consider that it is not open to the court to extend time under section 26(4) or to dispense with service of the notice of appeal..."

7. Having answered these two questions of principle, Lord Neuberger then considered two further questions. The first was whether the provisions of CPR 6.7, which deals with deemed service, were applicable to the time limits under sections 26(4) and 103(9):

"81... Thus, under the rules as they were at the time of the instant appeals, a document transmitted by fax after 4.00 pm was deemed to have been served 'on the business day after the day on which it is transmitted'. Such deeming provisions have been consistently held to be irrebuttable: see eg Anderton v Clwyd County Council No 2 [2002] EWCA Civ 933, [2002] 1 WLR 3174. In these appeals, it appears to have been generally assumed that these provisions govern the question of when a notice of appeal is treated as having been 'given' under sections 26(4) and 103(9).

82. In my view, that general assumption is wrong. Section 26(4) requires the appellant's notice to be issued and served within 7 days, and I can see no warrant for the CPR being invoked to cut down that period. If a statute permits something to be done within a specific period, it is hard to see how that period can be cut down by subordinate legislation, as a matter of principle. In relation to the first two points of principle raised by these appeals, it is part of the prosecutor's case, indeed it is part of my reasoning, that the reference to rules of court in the section govern the manner, not the time, of service. In these circumstances, it is particularly hard to see how invocation of provisions of the CPR can be justified in order to curtail that period. The point is reinforced by practical considerations: the 7-day period laid down by section 26(4) is short, and it does not seem very fair to cut it down, even if only by a few hours. Although the 14 days permitted by section 103(9) is somewhat longer, the same reasoning applies."

(Emphasis added).

8. Lord Neuberger then dealt with what happened if it was impossible to give notice on or during the final part of the last day in paragraphs 83 and 84.
9. The reference to it being part of his reasoning that the reference to rules of court in the section govern the manner, not the time, of service is a reference back to Lord Neuberger's conclusion in paragraph 75 of his opinion, in which he rejected the argument that the court had power to extend time, or indeed to dispense with service, in accordance with the rules of court. In response to that argument, Lord Neuberger said:

"I cannot accept that argument. First, the way in which the subsection is linguistically structured appears to me to mean that those words govern the way in which 'notice of an appeal' is to be 'given', not the time within which such notice is to be given, which is dictated by the closing part of the subsection."

10. Ms Smith accepts, on behalf of the applicant, that the 7-day deadline for filing and serving the notice of appeal expired at midnight on Monday, 19th January 2009. It is clear from the agreed chronology that a copy of the notice of appeal was faxed to (and received by) the Administrative Court office at 3.00 pm on Monday, 19th January; and that, shortly before that, a fax of the unsealed copy of the notice of appeal was sent to (and received by) the respondent.
11. There is no dispute that the document that was faxed to both the Administrative Court office and the respondent on Monday, 19th January was a notice of appeal against District Judge Tubbs' order. Was it filed and served on 19th January? The only reason why a hard copy of the notice of appeal was not filed on 19th January was because a senior legal manager in the Administrative Court office refused to accept it. With the benefit of hindsight, the subsequent decision in Mucelli makes it clear that the senior legal manager's decision was wrong.
12. On behalf of the respondent, Mr Jones submitted that a fax cannot be used to file a notice of appeal, and that, in any event, faxing an unsealed copy of the notice of appeal to the respondent was insufficient to constitute valid service. His principal submission was that a notice of appeal was not a notice of appeal unless and until it was stamped, and the stamped version of the notice of appeal was dated 20th January 2009. He contended that, on the facts that I have just described, the notice of appeal was not filed until the hard copy was lodged and stamped on 20th January 2009, and service of the notice of appeal was not effected until the sealed notice of appeal was served on 22nd January 2009.
13. In support of that submission, Mr Jones relied upon the following provisions in the practice directions, which supplement Part 5 and Part 52 of the CPR respectively. Paragraph 5.21(1) of the practice direction to Part 52 specifies what an appellant must serve on the respondent:

"Except where the appeal court orders otherwise a sealed copy of the appellant's notice, including any skeleton arguments must be served on all respondents..."

14. Paragraph 5.3 of the practice direction supplementing CPR Part 5 advises that:

"(9) Fax should not be used, except in an unavoidable emergency, to deliver:

(a) a document which attracts a fee..."

15. By virtue of the Civil Proceedings Fees Order 2008 a fee is payable "on filing an appellant's notice" in a statutory appeal to the High Court. Thus, it is submitted on behalf of the respondent that a fax cannot be used to file a notice of appeal under section 26(4) of the Act.
16. It seems to me that this submission ignores the express proviso in paragraph 5.39 of the practice direction "except in an unavoidable emergency". On the very unusual facts of the present case, I am in no doubt that there was such an emergency. The notice of appeal had to be filed at the Administrative Court office by midnight. The applicant's solicitors had attended the Administrative Court office in order to file the notice of appeal in time, but the Administrative Court office had wrongly refused to accept the notice. If that was not, at least from the applicant's solicitors' perspective, "an unavoidable emergency" which justified the subsequent faxing of the notice to the Administrative Court office, it is difficult to envisage the circumstances in which such a course would have been justified.
17. Mr Jones also relies on other provisions in paragraph 5 of the practice direction to CPR Part 5. Paragraph 5.1 states that:

"The date on which a document was filed at court must be recorded on the document. This may be done by a seal or a receipt stamp."

18. As I have mentioned, in this case the Administrative Court office stamped the notice of appeal as filed on 20th January.
19. Paragraph 5.3(2) states:

"Where a party files a document by fax, he must not send a hard copy in addition."

20. It is submitted that in the light of that practice direction, the copy that was faxed was superseded by the hard copy, which was not filed until 20th January.
21. In addition to the proviso to paragraph 5.3(9) of the practice direction which I have just mentioned, there is, in my judgement, a more fundamental flaw in the respondent's submissions. The respondent relies not upon the provisions of the CPR, but upon practice directions which supplement the CPR. Lord Neuberger made it clear in paragraphs 75 and 82 of his opinion (see above) that the reference to the rules of court in section 26(4) "govern the manner, not the time of service". Whereas the time for both filing and serving the notice of appeal is fixed by the Act and may not be extended by the court (nor may the court dispense with filing or service of the notice of appeal, see paragraph 80 of Lord Neuberger's opinion), the Act leaves the manner by which both filing and service of a notice of appeal are to be effected to the rules of court, ie the CPR supplemented by the relevant practice directions. Where procedural requirements governed by the CPR have not been complied with, the court has power to remedy the procedural error (CPR 3.10) and will do so if it is necessary in order to give effect to the overriding objective (CPR 1.2). This must apply with particular force to the very detailed procedural requirements which are not prescribed by the rules themselves, but which are contained within supplementary practice directions.
22. There is no doubt that a notice of appeal was faxed to (and received by) both the Administrative Court office and the respondent within the 7-day period. Was that sufficient to file and serve the notice within 7 days, notwithstanding the failure to comply with the practice directions to which I have just referred? In an appropriate case, the court has power under the CPR to permit the filing of a notice of appeal by fax, and to order that the service by fax of an unsealed copy of that notice of appeal upon the respondent shall suffice for the purposes of CPR 52. In my judgement, there can be no doubt whatsoever that this is an appropriate case in which the court should use its powers under the CPR to authorise the manner of filing and service of the notice of appeal that was adopted by the applicant's solicitors. To do otherwise would not give effect to the overriding objective to deal justly with the appeal of an appellant whose solicitors had been prevented from complying with the detailed requirements of the practice directions relating to filing and service of the notice of appeal, because the Administrative Court office had wrongly refused to accept the notice when they had attended the office and attempted to file it at 11.15 am on 19th January 2009.
23. For these reasons, I am satisfied that the court has power under the CPR to approve the manner in which the applicant's notice of appeal was filed and served within the 7-day period. There is, therefore, a valid appeal and unless the respondent is prepared to give an appropriate undertaking, the injunction granted by the Divisional Court should be extended until such time as the appellant's appeal is dealt with by this court.
24. Mr Jones was particularly concerned that a decision to permit non-compliance with the practice directions would open the floodgates. He pointed, in particular, to the need for certainty, given the very tight timetable that is imposed, not merely for appealing, but also for removing the person who is to be extradited if there is no appeal. In this context, he referred to paragraphs 66 and 67 in the opinion of Lord Neuberger. He submitted that it was essential that the CPS, in cases such as this, should know where they stand — whether there has been a valid appeal or not.
25. I can well appreciate the force of that submission, but inevitably, where the manner of giving a notice of appeal is governed not by the Act but by the rules of court, there will be scope for a degree of uncertainty insofar as the court has power, under the rules, to dispense with failures to comply with particular procedural requirements. Given the very tight timetable for appealing that is imposed by the Act, it seems to me that the court's power to remedy minor deficiencies in the manner of the giving of a notice of appeal under the Act provides a useful safety valve in any event. But, whether or not that is the case, I would emphasise that the decision in this case turns, in my judgement, entirely upon a particular and most unusual set of facts which, following the House of Lords decision in Mucelli, are unlikely to recur.
26. My decision is not to be taken as authorising the filing and/or service of notices of appeal under section 26(4) otherwise than in accordance with the CPR and the practice directions in circumstances where the Administrative Court office is both willing and able to accept an "in time" application, and where there has been no wrongful refusal, as there was in the present case, to file such an application made in time. For these reasons, I am not satisfied that this case opens the floodgates any more than the inevitable consequence that flows from the conclusion that the manner of the giving of a notice of appeal is governed not by the Act but by the CPR.
27. For these reasons I am satisfied that there is a valid notice of appeal.
28. MR JUSTICE WILKIE: I agree.
29. LORD JUSTICE SULLIVAN: What is the position, Mr Jones? Do we continue the injunction?
30. MR JONES: No, we certainly do not need the injunction; I am prepared to give the undertaking that the appellant will not be removed. Can I just explain that that follows, in my submission, from section 36(3)(a), which says that the person must be removed within 10 days of the appeal being final.
31. LORD JUSTICE SULLIVAN: So once there is an appeal --
32. MR JONES: -- there is no question of him being removed. So I am happy to give that undertaking and, from that point of view, the injunction will be unnecessary.
33. May I also just say that it may be necessary to extend the time for hearing the appeal? That is section 31(3). I think that the Administrative Court will know better what the period is, but I do ask for that, if that is necessary.
34. LORD JUSTICE SULLIVAN: In my experience, it is almost always necessary. In practically every single extradition case I have had it has been necessary to extend time for hearing the appeal in the interests of justice, from what I can remember, anyway.
35. Can you just remind me, where is the order of the Divisional Court below? I just want to see how long the interim injunction carried on for. Does it go on to today, or do we need to actually bring it to an end? Do we have a copy of the order somewhere? (Pause). I have been given it:

"1. The removal of the appellant to Poland by way of extradition be prohibited until the substantive determination of his application for injunctive relief".

Well, that is it, then. So we do not need any more than that. The interim injunction will fall away, but the undertaking and the provisions of the Act ensure that he will not be removed; yes?

36. MS SMITH: Yes.
37. LORD JUSTICE SULLIVAN: So what more do you need? What formal order are you seeking from us, Ms Smith?
38. MS SMITH: I think, in relation to the preliminary issue, we are simply seeking an order that the appeal is valid — that you have found that it is a valid appeal. That is my understanding. But we are also seeking costs.
39. LORD JUSTICE SULLIVAN: You are not seeking declaratory relief, are you? We are determining a preliminary issue. I am just thinking of the form of words for the associate, that is all.
40. MS SMITH: I think possibly "declaratory" is appropriate, that the court makes the declaration that the appeal is/was valid.
41. LORD JUSTICE SULLIVAN: That would seem to be probably the most satisfactory. Do you agree with that, Mr Jones?
42. MR JONES: Yes, I think that is probably right.
43. LORD JUSTICE SULLIVAN: Right, because if we do that then everything falls into place, subject to costs; we do not need anything else about what happens to the injunction and so on?
44. MR JONES: Yes, I think that is right, because you could not order it to be a valid appeal if it was not already, so it is declaratory.
45. LORD JUSTICE SULLIVAN: Right, so we will grant the applicant a declaration that there is a valid appeal under section 26(4).
46. That just leaves costs.
47. MS SMITH: Yes. Of course, you will be aware that when the respondent first raised the issue about the time limit of the appeal, the judgment in Mucelli had not yet been handed down. So even if it was valid on Monday, that would not have been sufficient. But once the opinion of the Lords was received on Wednesday, 21st January, then the respondent was aware of that position. It seems to me that in that case the respondent should have conceded somewhat earlier that the applicant, in his circumstances, had made a valid appeal. Bearing in mind my duty, and my instructing solicitors' duty, to the public fund, it seems an appropriate case in which costs are awarded against the defendant.
48. LORD JUSTICE SULLIVAN: Mr Jones was not conceding it right up until his submissions. At the moment, they have fought it and lost. Maybe there is a very good reason why they should not pay, but shall we hear it from Mr Jones?
49. MS SMITH: That would be costs follow the event, in that case, my Lord.
50. LORD JUSTICE SULLIVAN: Why should costs not follow the event? You argued your corner up to the end, if I may say so, manfully, and lost.
51. MR JONES: In reply to my Lord, I think I cannot resist that. This is a separate issue from the appeal.
52. LORD JUSTICE SULLIVAN: Yes, a completely separate issue, is it not? So it seems to us that the applicant should have his costs against the respondent.
53. MS SMITH: I am grateful, my Lord.
54. LORD JUSTICE SULLIVAN: They go off for detailed taxation, do they?
55. MS SMITH: That is right, detailed assessment.
56. LORD JUSTICE SULLIVAN: Detailed assessment, right. Anything else you want?
57. MR JONES: No, my Lord. I am obliged.
58. LORD JUSTICE SULLIVAN: Thank you both very much indeed and thank you for your very helpfully skeleton arguments.