QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE NICOL
| THE PUBLIC PROSECUTOR'S OFFICE OF THE APPEAL COURT OF EASTERN CRETE, GREECE
- and –
|LEAH LOUISE ANDREW
for the Appellant
Malcolm Hawkes (instructed by McMillan Williams Solicitors Limited) for the Respondent
Hearing date: 6 March 2018
Crown Copyright ©
Lord Justice Hickinbottom:
"But where a person gives notice of application for leave to appeal after the end of the permitted period, the High Court must not for that reason refuse to entertain the application if the person did everything reasonably possible to ensure that the notice was given as soon as it could be given."
Save for that limited exception in respect of appeals by a requested person against an extradition order, the seven day time limit for giving notice of appeal in a Part 1 case remains rigid. Notably for the purposes of this case, unless a requesting judicial authority gives notice within the requisite time limit, this court has no jurisdiction in relation to the appeal.
"(1) This rule applies where—
…(b) the person to be served is legally represented in the case and the legal representative—(i) has given an electronic address….
(2) A document may be served—
(a) by sending it by electronic means to the address which the recipient has given;…
(3) Where a document is served under this rule the person serving it need not provide a paper copy as well."
"Unless something different is shown, a document served on a person by any other method is served—
(d) in the case of a document served by electronic means—(i) on the day on which it is sent under rule 4.6(2)(a), if that day is a business day and if it is sent by no later than 2.30pm that day (4.30pm that day, in an extradition appeal case in the High Court)…" (emphasis added).
Therefore, unlike rule 4.11(1), rule 4.11(2) is introduced and governed by the words, "Unless something different is shown…". Mr Evans properly accepted that those words must be given some content; and thus a document sent by (e.g.) email is not served simply when it is sent. However, if a document in an extradition appeal is sent by email before 4.30pm, then the rule imposes a presumption that it is served that day. If it is sent after 4.30pm, then there is a presumption that it is served the following day. But, by the opening words of rule 4.11(2), it is clearly intended that those presumptions are rebuttable and may be rebutted by evidence as to when, in fact, it was received. In the course of the hearing, Mr Evans accepted that proposition. In my view, he was quite right to do so.
"The maximum size email you can send by Secure eMail is 10MB…. Some organisations set lower file size limits so you may find that while your system can send (and receive) emails which are over 4MB, the organisation you are sending to may not be able to receive them."
It also states that:
"You can request delivery, read and non-delivery reports to be returned to you when you send a Secure eMail, providing your existing email service and the recipient's system support that functionality – some systems are set up to block these reports.
However, absence of a non-delivery report should not be taken as confirmation that important emails have reached the addressee and it is best practice to confirm they have arrived."
In fact, the storage capacity for Mr Bergstrom's secure email inbox was only 25MB. Given that one of the two emails was 18MB in size, it is unsurprising that they did not go through promptly or properly.
Mr Justice Nicol: