QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE SILBER
| OFFICE OF PUBLIC PROSECUTOR OF HAMBURG, GERMANY
|- and -
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mark Summers (instructed by Shaw, Graham, Kersch, Solicitors) for the Defendant
Hearing dates: 27/01/2009
Crown Copyright ©
Sir Anthony May, President of Queen's Bench Division:
(1) the case would have to be altogether exceptional such that a ruling having retrospective effect would have gravely unfair and disruptive consequences. This case comes nowhere near that.
(2) declaring quite exceptionally that a ruling should have prospective effect only is probably only within the competence of the House of Lords. This is our reading of the effect of the opinions in In re Spectrum Plus Ltd, and in any event decisions of lower courts are seldom beyond appeal. Mr Summers expressly conceded this point orally when the court put it to him.
(3) Dyson LJ did not consider making the ruling in Louca prospective only, let alone did he say that it should be.
(4) one Divisional Court probably could not make a ruling having prospective effect only which would bind another Divisional Court.
(5) the relevant law before Louca was probably dicta only which the District Judge did not have to follow.
(6) there is no conceivable justification for giving a decision prospective effect only on appeal when, as in this case, the now correct law was argued, albeit unsuccessfully, at first instance.
1) paragraph 38 in the opinion of Lord Brown of Eaton-under-Heywood in Mucelli, in which he held that the statutory time limit for filing and serving the appellant's notice was unextendable. But he added that:
"The rules of court are to dictate everything about the filing and serving of the notice save only the period within which this must be done; this is expressly dictated by the section itself. Whatever discretions arise under the rules are exercisable only in so far as is consistent with the filing and serving of the notice before the statutory time limit expires."
2) paragraph 75 in the opinion of Lord Neuberger, where he rejected a submission that a power to extend time could be found in the words: "in accordance with the rules of court" in section 26(4) which would incorporate the various provisions of the Civil Procedure Rules. But he 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 notices to be given, which is dictated by the closing part of the sub-section."
3) paragraph 82 in the opinion of Lord Neuberger, where he said that it was part of his reasoning that reference to the rules of court in section 26(4) govern the manner, not the time, of service.
4) section 35 of the 2003 Act, which has a mandatory requirement for extradition if a person whose extradition was ordered does not give a notice of appeal before the end of the period permitted under section 26, but no such rigid requirement for other deficiencies in the notice of appeal.