England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/01/2011

The Hon. Mr. Justice Burnett :

1. This is the judgment of the Court prepared by Burnett J. This is an application for judicial review of the decision on 3 November 2010 of District Judge Tubbs at the City of Westminster Magistrates'' Court whereby she refused to order the discharge of the claimants pursuant to section 99 of the Extradition Act 2003 ["the 2003 Act"]. The basis of the application was that the Secretary of State for the Home Department was obliged under the statutory scheme to order the claimants' extradition to Ukraine by 2 November at the latest, failing which on their application to the Magistrates' Court, the claimants were entitled to be discharged.
2. The District Judge, having heard rather less full argument than has been presented in this Court, decided that the last day upon which the Secretary of State could order the claimants' extradition was 3 November. Such an order was made that day by the Secretary of State. In those circumstances she concluded that the application for discharge should fail.
3. The claim for judicial review came before this Court for hearing at the same time as the claimants' appeals against the earlier order of District Judge Wickham sending their cases for extradition to the Secretary of State. That order was made in the City of Westminster Magistrates' Court on 3 September 2010. Having heard argument, we concluded that the last date on which the Secretary of State was empowered to order the claimants' extradition to Ukraine was 2 November and not 3 November as the District Judge had held. In those circumstances, we allowed the claim for judicial review. We quashed the decision of District Judge Tubbs and directed the discharge of the claimants. We did not proceed to hear the statutory appeals, which raised arguments concerning the administration of justice and prison conditions in Ukraine, because they had become academic. By consent those appeal was withdrawn.
4. These are our reasons for allowing the claim for judicial review.
5. The claimants' surrender was sought by the Government of Ukraine to stand trial for offences of dishonesty. It was alleged that they had misappropriated the equivalent of about £1,000,000 from a credit union which they had established. The extradition hearing in the City of Westminster Magistrates' Court took place on 3 September 2010 before District Judge Wickham. Ukraine is a Category 2 territory for the purposes of the 2003 Act. The final decision whether to extradite a requested person is entrusted by the statutory scheme to the Secretary of State after the Court has determined whether there is any legal impediment. Human rights issues were raised before the District Judge in opposition to the cases of the two claimants being sent to Secretary of State to decide whether they should be extradited. Having heard evidence, the District Judge rejected the arguments advanced on behalf of the claimants and that same day sent their cases to the Secretary of State pursuant to section 92 of the 2003 Act.
6. Section 99 of the 2003 Act provides:

"(1) This section applies if–

(a) the appropriate judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited;

(b) within the required period the Secretary of State does not make an order for the person's extradition or discharge.

(2) If the person applies to the appropriate judge to be discharged, the judge must order his discharge.

(3) The required period is the period of 2 months starting with the appropriate day.

(4) If before the required period ends the Secretary of State applies to the appropriate judge for it to be extended the judge may make an order accordingly; and this subsection may apply more than once."

Section 102 of the 2003 Act defines 'appropriate day' for the purposes of, inter alia, section 99. It provides:

"(1) This section applies for the purposes of sections 93 and 99 if the appropriate judge sends a case to the Secretary of State under this Part for his decision whether a person is to be extradited.

(2) If the person is charged with an offence in the United Kingdom, the appropriate day is the day on which one of these occurs–

(a) the charge is disposed of;

(b) the charge is withdrawn;

(c) proceedings in respect of the charge are discontinued;

(d) an order is made for the charge to lie on the file, or in relation to Scotland, the diet is deserted pro loco et tempore.

(3) If under section 97(3) or 98(2) the Secretary of State defers making a decision until the person has served a sentence, the appropriate day is the day on which the person finishes serving the sentence.

(4) If section 126 applies in relation to the request for the person's extradition (the request concerned) the appropriate day is–

(a) the day on which the Secretary of State makes an order under that section, if the order is for proceedings on the other request to be deferred;

(b) the day on which an order under section 180 is made, if the order under section 126 is for proceedings on the request concerned to be deferred and the order under section 180 is for the proceedings to be resumed.

(5) If section 179 applies in relation to the request for the person´s extradition, the appropriate day is–

(a) the day on which the Secretary of State makes an order under that section, if the order is for proceedings on the warrant to be deferred;

(b) the day on which an order under section 180 is made, if the order under section 179 is for proceedings on the request to be deferred and the order under section 180 is for the proceedings to be resumed.

(6) If more than one of subsections (2) to (5) applies, the appropriate day is the latest of the days found under the subsections which apply.

(7) In any other case, the appropriate day is the day on which the judge sends the case to the Secretary of State for his decision whether the person is to be extradited."

7. Given the circumstances of this case, the appropriate day was governed by section 102(7), namely the day on which the claimants' cases were sent by District Judge Wickham to the Secretary of State. That was 3 September. By virtue of Section 99(2) of the 2003 Act a person whose case has been sent to the Secretary of State is entitled to be discharged if within the required period of two months starting with the appropriate day, the Secretary of State has not ordered his extradition or sought an extension of time. The 'appropriate judge' in this case to whom the application for discharge had to be made was a District Judge at Westminster Magistrates' Court. The Secretary of State did not apply for an extension of time.
8. We pause to observe that the 2003 Act provides many time limits for taking steps in connection with extradition proceedings. All of them are expressed in terms which 'start with' the day on which an event occurs. Most impose time limits expressed in days. It is uncontroversial that when a statute imposes a time limit 'starting with' or 'beginning with' the date on which an event occurs, that day is generally included for the purposes of calculating the expiry of a time limit. A clear example of the operation of that principle in the context of the 2003 Act is found in Mucelli v. Government of Albania; Moulai v. Deputy Public Prosecutor in Creteil, France [2009] UKHL 2. The time limits in question were seven days and 14 days respectively for an appeal to the High Court starting with date on which the District Judge, on the one hand, and Secretary of State, on the other, made the decision in question. In Moulai's case the decision was made on 14 March 2008. The seven day time limit expired on 20 March (see paragraph [90] of the opinion of Lord Neuberger of Abbotsbury).
9. The time limit in section 99(3) is expressed in months rather than days. Two other provisions of the 2003 Act refer to time limits expressed in months (see sections 75 and 76).
10. In coming to the conclusion that the two month time limit expired on 3 November, when the case had been sent to the Secretary of State on 3 September, the District Judge accepted a submission that the 'corresponding date rule', as explained by Lord Diplock in Dodds v. Walker [1981] 1 WLR 1027, applied to the circumstances of this case. Dodds v. Walker was concerned with a time limit imposed by the Landlord and Tenant Act 1954 to make an application to the Court. Lord Diplock's discussion of the corresponding date rule, the reasoning of which was agreed by all their Lordships, is found between page 1029G and 1030D.

"My Lords, Part II of the Landlord and Tenant Act 1954 entitles a tenant of business premises, whose tenancy has been terminated by notice given to him by his landlord in accordance with the provisions of that Act, to apply to the court for a new tenancy. By section 29(3) the application must be made "not less than two nor more than four months after the giving of the landlord's notice." In the instant case the respondent landlord's notice was given on September 30, 1978; the appellant tenant's application to the court for a new lease was made on January 31, 1979. The only question in this appeal is: Was that one day too late?

The registrar and the judge of Grantham County Court both thought that it was too late. They dismissed the tenant's application on the ground that the court had no jurisdiction to entertain it. In the Court of Appeal opinion was divided. Stephenson and Templeman LJJ agreed that it was one day too late; Bridge LJ thought that it was just in time: and leave was given by that court to appeal to your Lordships' House.

My Lords, reference to a "month" in a statute is to be understood as a calendar month. The Interpretation Act 1889 says so. It is also clear under a rule that has been consistently applied by the courts since Lester v. Garland (1808) 15 Ves.Jun. 248, that in calculating the period that has elapsed after the occurrence of the specified event such as the giving of a notice, the day on which the event occurs is excluded from the reckoning. It is equally well established, and is not disputed by counsel for the tenant, that when the relevant period is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, i.e. the day of that month that bears the same number as the day of the earlier month on which the notice was given.

The corresponding date rule is simple. It is easy of application. Except in a small minority of cases, of which the instant case is not an example, all that the calculator has to do is to mark in his diary the corresponding date in the appropriate subsequent month. Because the number of days in five months of the year is less than in the seven others the inevitable consequence of the corresponding date rule is that one months' notice given in a 30 day month is one day shorter than one month's notice given in a 31 day month and is three days shorter if it is given in February. Corresponding variations in the length of notice reckoned in days occur where the required notice is a plurality of months."

11. Miss Dobbin, who appeared for the Secretary of State, submitted that the corresponding date rule applied to the circumstances of this case. Thus the statutory requirement to order the extradition of the claimants within two months starting with the day on which the case was sent to the Secretary of State, when that day was 3 September 2010, was satisfied when she made the order on 3 November. She submitted that the rule is of general application when a statute expresses a time limit in months, irrespective of whether Parliament provided for a time limit 'starting with' the day of an event or 'after' a particular day. Mr Josse QC, who appeared for the claimants, submitted that the corresponding date rule applies only when the first day is left out of account for the purposes of calculating a time limit. He drew our attention to two decisions of the Court of Appeal (Trow v. Ind Coope (West Midlands) Limited [1967] 2 Q.B. 899; Zoan v. Rouamba [2000] 1 WLR 1509), and one of a Divisional Court (Hare v. Gocher [1962] 2 QB 641) in which time limits expressed in months in terms similar to section 99(3) of the 2003 Act were held to have expired not on the corresponding date of the appropriate later month but on the day before. He submitted that the first two decisions bind this Court. He also relied on the decision of the Court of Session in Pacitti Jones (a firm) v. Claire O'Brien 2006 SC 616 which concerned a time limit under the Employment Rights Act 2006 where an argument identical to that advanced before us by the Secretary of State was rejected.
12. Both Trow v. Ind Coope and Hare v. Gocher were concerned with time limits (12 months and two months respectively) expressed as 'beginning with' a particular day. Zoan v. Rouamba was also concerned with a time limit expressed in months 'beginning with' a particular date. There is plainly no distinction to be drawn between 'beginning with' and 'starting with' for the purposes of interpreting the statutes in question. It is convenient to cite a passage from the judgment of the Court delivered by Chadwick LJ in Zoan v. Rouamba to understand the reasoning which was applied in all three cases:

"23. Where, under some legislative provision, an act is required to be done within a fixed period of time "beginning with" or "from" a specified day it is a question of construction whether the specified day itself is to be included in, or excluded from, that period. Where the period within which the act is to be done is expressed to be a number of days, months or years from or after a specified day, the courts have held, consistently since Young v. Higgon (1840) 6 M.&W. 49, that the specified day is excluded from the period; that is to say, that the period commences on the day after the specified day. Examples of such an "exclusive" construction are found in Goldsmiths' Company v. West Metropolitan Railway Company [1904] 1 KB 1 ("the powers of the company for the compulsory purchase of lands for the purposes of this Act shall cease after the expiration of three years from the passing of this Act") and in In re Lympe Investments Ltd [1972] 1 W.L.R 523 ("the company has for three weeks thereafter neglected to pay"). In Stewart v. Chapman [1951] 2 K.B. 792 ("a person ... shall not be convicted unless ... within 14 days of the commission of the offence a summons for the offence was served on him") Lord Goddard, C.J., observed, at pp 798-799, that it was well established that "whatever the expression used" the day from which the period of time was to be reckoned was to be excluded.


24. Where, however, the period within which the act is to be done is expressed to be a period beginning with a specified day, then it has been held, with equal consistency over the past 40 years or thereabouts, that the legislature (or the relevant rule making body, as the case may be) has shown a clear intention that the specified day must be included in the period. Examples of an "inclusive" construction are to be found in Hare v. Gocher [1962] 2 Q.B. 641 ("if within [the period of two months beginning with the commencement of this Act] the occupier of an existing site duly makes an application ... for a site licence") and in Trow v. Ind Coope (West Midlands) Ltd [1967] 2 Q.B. 899 ("a writ ... is valid ... for 12 months beginning with the date of its issue"). As Salmon L.J. pointed out in Trow v. Ind Coope, at p. 923, the approach adopted in the Goldsmiths' Co. case and Stewart v. Chapman can have no application in a case where the period is expressed to begin on the specified date. He observed, at p. 924, that

"I cannot ... accept that, if words have any meaning, `beginning with the date of its issue' can be construed to mean the same as `beginning with the day after the date of its issue.'".


25. The judge held that it was "obvious", from the use of the expression "beginning with the date of the agreement" in article 3(1)(a)(i) of the Order of 1989, that the period of 12 months prescribed by that paragraph included the date of the agreement. In our view he was plainly correct to reach that conclusion. Notwithstanding the submissions advanced on behalf of the plaintiff, we can see no basis on which this court could refuse to apply the reasoning which led the majority (Harman and Salmon L.JJ.) in Trow v. Ind Coope to hold that there is a real difference between a direction that a period of time is to begin with a specified date and a direction that a period is to be reckoned from that date."

13. Miss Dobbin sought to escape the application of this reasoning on two bases. First, she submitted that both Hare v. Gocher and Trow v. Ind Coope were decided before the decision of the House of Lords in Dodds v. Walker and in consequence would now be decided differently. Secondly, she submitted that the decision of the Court of Appeal was reached without the benefit of considering that decision.
14. It is right that Chadwick LJ did not discuss Dodds v. Walker in the judgment of the Court. Nonetheless, as the report of the decision shows, it was cited in argument. The decision was not per incuriam. It is apparent that the Court of Appeal did not consider the corresponding date rule applicable, for reasons which we respectfully suggest become apparent when close attention is paid to the language used by Lord Diplock in Dodds v. Walker. His reasoning contained three components. First, that the Interpretation Act dictates that a month means a calendar month. Secondly, that in calculating a period that has elapsed after the occurrence of a specified event, the date of that event is excluded from the reckoning. Thirdly, when the relevant period is expressed in months after a specified event, the corresponding date rule applies.
15. In our judgment, the corresponding date rule depends for its application upon the exclusion of the day of the occurrence of the specified event. Lord Diplock recorded the well established canon of construction that excludes that day when a statute specifies a time limit after the occurrence of an event. He then noted that it was common ground that in circumstances where the statutory provision excluded that day, the corresponding date rule applied. Thus if section 99(3) had said 'the required period is the period of 2 months after the appropriate day' the corresponding date rule would have applied. However, because the appropriate day was included in the calculation of the period of two months ('starting with the appropriate day'), the time limit expired on the day preceding the corresponding date. To conclude otherwise would extend the period to one month and one day in defiance of the clearly expressed intention of Parliament. Dodds v. Walker said nothing which calls into question the correctness of the reasoning in either Hare v. Gocher or Trow v. Ind Coope.
16. The corresponding date rule does not apply to the time limit of two months specified by section 99(3) of the 2003 Act because the day on which the case is sent by the Magistrates' Court to the Secretary of State is included within that period.
17. Lord Diplock noted that 'the corresponding date rule is simple' in its application. In cases where it does not apply, because the day of the occurrence is included in the reckoning, it is no less simple. The time limit expires on the eve of the corresponding date. All that the person concerned has to do having determined from the statutory language that the day of the occurrence is included is mark in his diary the eve of the corresponding date.
18. We conclude that we are bound by the decisions of the Court of Appeal in Trow v. Ind Coope and Zoan v Rouamba. For the reasons we have given, there is no inconsistency between those decisions and Dodds v. Walker. That approach accords with the reasoning of the Court of Session in Pacitti Jones (a firm) v. Claire O'Brien. The issue before that Court concerned the calculation of a period of 12 months which 'began with' 8 April 2002. The conclusion of the Court was that it ended on 7 April 2003. In giving the opinion of the Court Lord Reed dealt with the argument advanced by reference to Dodds v. Walker in this way:

"[13] What Lord Diplock described as the corresponding date rule applies, in his Lordship's words, 'when the relevant period is a month or specified number of months after the giving of a notice'. The rule has the effect of excluding from the computation the day on which the notice was given...

[14] The dependence of the decision in Dodds v. Walker upon the exclusion of the terminus a quo is equally apparent from the speech of Lord Russell of Killowen (p1030):

'My Lords, it is common ground that in this case the period of four months did not begin to run until the end of the date of the relevant service on September 30 – i.e. at midnight September 30/October 1. It is common ground that ordinarily the calculation of a period of a calendar month or calendar months ends upon what has been conveniently referred to as the corresponding date. For example in a four month period, when service of the relevant notice was on September 28, time would begin to run at midnight September 28/29 and would end at midnight January 28/29, a period embracing four calendar months.'

This approach cannot be applied if, by statute, the court is required to count the date on which the relevant event occurred (in present case, the employee starting work) as part of the relevant period."

We agree fully with this reasoning.

19. The time limit of two months starting with 3 September 2010 ended on 2 November 2010. The Secretary of State ordered the claimants' extradition to Ukraine on 3 November 2010, one day outside the statutory time limit. She had made no anterior application for an extension of time. By virtue of section 99(2) of the 2003 Act, on the claimants' application to the District Judge, they were entitled to be discharged.