QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE NICOL
| REGIONAL COURT IN KONIN, POLAND
(A Polish Judicial Authority)
|- and -
Ben Keith (instructed by Dalton Homes Gray) for the Respondent
Hearing date: 27 July 2010
Crown Copyright ©
Lord Justice Stanley Burnton :
The relevant chronology
(i) Is service on the respondent of a draft notice of appeal, followed by the filing of notice, capable of complying with the requirement that notice of an appeal be given within the permitted period?
(ii) If the answer to (i) is "Yes", does service of an unsealed copy of the notice of appeal satisfy the requirement of section 28 that notice be given "in accordance with rules of court"?
(iii) If the answer is to (ii) is "No", does the court have power to waive the requirement that the notice of appeal served on the respondent must be sealed?
(iv) If the answer to (iii) is "Yes", should the Court exercise that power in the present case?
The submissions of the parties
(i) It was sufficient to serve a notice of appeal before filing, provided the notice was filed within the permitted period, and that the decision of this Court in Sciezka v The Court in Sad Okregowy, Kielce, Poland  EWHC 2259 (Admin) is binding authority to this effect.
(ii) It was unnecessary to serve a sealed copy of the notice of appeal: no such requirement is to be found in paragraph 22.6A of the Practice Direction to Part 52 of the CPR.
(iii) If the answer to (ii) was incorrect, the deficiency was as to the content of the notice of appeal, and not to the timing of giving notice of appeal, and failure to comply did not necessarily render the giving of notice ineffective. The Court has power to excuse such a deficiency under CPR Part 3.10.
(iv) That power should be exercised in favour of the Appellant, having regard to the circumstances set out in the witness statement of Daniel Sternberg dated 26 July 2010 and the fact that no prejudice has been suffered by the Respondent as a result of the deficiency.
"7. From July 1999, the Immigration and Nationality Directorate ("IND") adopted a policy following discussion with the Administrative Court which was known as "the Concordat" and which was designed to clarify the arrangements for responding to last-minute judicial review challenges to removal and thereby reducing the high number of injunctions being sought in such cases. Under the Concordat, the IND agreed to defer enforced removals of an individual for three days in the event of a threat of judicial review so as to enable a court reference number to be obtained. If it was confirmed within 24 hours that judicial review proceedings had been initiated, the removal directions would then be cancelled."
In other words, after the initial 3-day period, the IND would not treat a threat of judicial review proceedings as justifying deferral of removal: it required confirmation that proceedings had actually been filed.
"It was also claimed that it would be inconvenient if section 26(4) referred to two events, rather than one. In my view, there is nothing in that: it requires filing and then service, so, in practice, it logically can be treated as only referring to service."
The italics are mine. If service follows filing, what can and should be served is the notice of appeal with its court stamp and reference number.
"This is not the product of some invariable rule for Scottish criminal appeals. On the contrary, practice varies."
"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."
"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."
The underlining is in the original. In my judgment, the question whether a draft notice of appeal can be a notice of appeal is not a question of form or manner of service, but of substance, going to the time of the giving of the notice of appeal. In my judgment, a party does not give notice of appeal by serving a draft of his notice on the proposed respondent. What must be served is a copy of the filed notice of appeal.
"20.1 This Section of this Practice Direction provides special provisions about the appeals to which the following table refers. This section is not exhaustive and does not create, amend or remove any right of appeal.
20.2 Part 52 applies to all appeals to which this section applies subject to any special provisions set out in this section.
20.3 Where any of the provisions in this section provide for documents to be filed at the appeal court, these documents are in addition to any documents required under Part 52 or sections I or II of this practice direction."
"(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;
Issues (iii) and (iv)
"7. The Administrative Court Office rejected the Appeal documents which the CPS attempted to lodge on Friday April 16th 2010. The reason given was that only one copy of the supporting material was supplied with the form N161, instead of supporting material being attached to each of the four copies of the notice of appeal that were submitted to the Administrative Court Office.
8. I learned on the afternoon of Friday April 16th 2010 that the Administrative Court had rejected the appeal. I therefore asked that a CPS caseworker lodge the appeal again on Monday April 19th 2010 together with supporting documentation in each case.
9. The appeal was successfully lodged on Monday April 19th 2010. I was not able to serve a sealed copy of the notice of appeal on the representatives of Mr. Walerianczyk on this day as I was at the City of Westminster Magistrates' Court all day prosecuting extradition cases. The permanent lawyer at the CPS Extradition Unit with conduct of the case was on leave on this day.
10. A copy of the sealed notice of appeal was served on Dalton Holmes Gray, the Representatives of the Respondent Mr Walerianczyk by fax and by Document Exchange on Tuesday 20th April 2010. The letter covering the sealed notice of appeal noted that this firm had already been sent a copy of the unsealed notice of appeal and supporting documentation on Friday April 16th 2010. "
MR JUSTICE NICOL :
"Nothing in the rules precludes service on the CPS or on the Respondent of an Appellant's Notice which has not been issued (or stamped as received) by the Administrative Court Office as Mr Justice Collins pointed out in dialogue with counsel during a hearing on 6 April 2009 conducted by video link when, it appears to me, at least initially the CPS thought that it could waive service. Alerted by the court, counsel preserved the jurisdiction point and Mr Justice Collins granted legal assistance so that it could be argued or at least ventilated."