Jersey Unreported Judgments

Judicial review - application for leave to extend time to appeal Order.

[2014]JCA155

Court of Appeal

7 August 2014

Before     :		J. W. McNeill, Q.C., sitting as a Single Judge.
Between	The Chief of the States of Jersey Police		Appellant
And	The Panel of Jurats		Respondent
And	Police Constable X		The Interested Party

Advocate J. H. Kelleher for the Appellant.

Advocate M. T. Jowitt for the Respondent.

Advocate J. C. Gollop for the Interested Party.

judgment

MCNEILL JA:

Introduction

1.        This is an application for an extension of time for service of a Notice of Appeal, which comes before me as a single judge of the Court of Appeal. 

Background

2.        The Applicant, The Chief Officer of the States of Jersey Police, sought Judicial Review of two decisions of the Respondent, a Panel of Jurats, (a) to vary a sanction imposed on the Interested Party, Police Constable X, in respect of admitted disciplinary offences and (b) not to publish its decision on sanction.  The hearing on the application for Judicial Review took place on 2^nd April, 2014, and on that day the Royal Court (Sir Christopher Pitchers Kt., Commissioner) issued a determination confirming the grant of leave but dismissing the application in respect of the decision on sanction, reserving determination in respect of the decision on publication, holding over the matter of costs and indicating that reasons would be set out in a judgment to be delivered at a later date. 

3.        By email sent at about 12:30pm on 15^th April, 2014, the Bailiff's Judicial Secretary sent a copy of the Commissioner's draft judgment to parties' representatives and in accordance with Royal Court Practice Direction RC10/01 asked for submissions by 25^th April.  That Practice Direction sets out certain provisions which, unless otherwise directed, are to apply where a court circulates a judgment in draft.  Among other matters it provides that a judgment in draft is not to be relied upon or used in court until a final approved version has been handed down formally, whether at a hearing or otherwise. 

4.        By email sent at about 14:15pm on 21^st May, 2014, the Bailiff's Judicial Secretary sent a copy of the Commissioner's final judgment to parties' representatives, confirming which alterations had been made following parties' submissions and indicating that, although not yet published, the judgment could be quoted from that date. 

5.        On 20^th June, 2014, the Applicant caused to be served on the Respondent and the Interested Party a Notice of Appeal which bore to relate to "so much of the judgment given by the Royal Court upon the hearing of these judicial review proceedings on the 2^nd day of April, 2014, as adjudged that the application be dismissed in respect of the decision on sanction, reasons for which were handed down on 21^st May, 2014, pursuant to an Act of Court dated 2^nd April, 2014, but in respect of which a final Act of Court has not been issued".  Among other matters the Applicant intimated that he would ask the Court of Appeal "insofar as it may be necessary, [that] the time for bringing this appeal shall be extended to the date hereof."

6.        Earlier, on 8^th May, the Advocate for the Interested Party had written to those representing the Applicant with proposals regarding costs.  There was no reply, the amount claimed was not disputed and a cheque in full settlement was received on 13^th June. 

Proposed Appeal

7.        The proposed Grounds of Appeal, put shortly, are that the learned Commissioner erred:-

(i)        in failing to identify that the Respondent Panel had misunderstood the law, in himself applying the wrong test, and in substituting his own factual analysis;

(ii)       in allowing the Respondent Panel to correct errors in methodology;

(iii)      in failing to deal with the Respondent Panel's failure to take proper account of employment law;

(iv)      in asserting that a "zero tolerance" policy or equivalent was not in place at the time of the conduct complained of;

(v)       in deciding that he was not ab le to substitute his own decision for that of the Respondent Panel;

(vi)      in failing adequately to consider criticisms of the Respondent Panel's analysis of evidence; and

(vii)     in failing properly to evaluate an expert report."

Statutory time limit

8.        Rule 6 of the Court of Appeal (Civil)(Judicial Review) Rules 2000 provides, among other matters:

"6       Appeal against the substantive order

(1)       An appeal against the substantive order shall be brought by notice of appeal substantially in the form set out in Schedule 11.

(2)       Except with the leave of the Court, the appellant shall not be entitled at the hearing of the appeal to rely on any grounds of appeal, or to apply for any relief, not specified in the notice of appeal.

(3)       Every notice of appeal shall be served upon all other parties who appeared before the Court below and are directly affected by the appeal within 14 days from the date on which the order was made......."

9.        Upon the hypothesis that has been a substantive order which could properly be the subject of a Notice of Appeal, it follows that the latest date upon which any present order could be said to have been handed down was 21^st May, 2014, that any Notice following that order should have been served by 4^th June and, accordingly, that, upon the same hypothesis, the Notice served was some 16 days out of time. 

Submissions

10.      For the Applicant an Affidavit of the Deputy Chief Officer was presented in support of the Application and through that it was submitted that in the absence of an Act of Court finally disposing of matters, time had not yet started to run and that circulation of the final form of judgment did not suffice.  It was submitted, however, that in light of the need for expedition service of the Notice of Appeal should be treated as valid service. 

11.      As to lack of an order, Rule 6 of the 2000 Rules required there to be an order.  What had been circulated in May had been described as the "final" form of a judgment, but, properly understood, was merely a final draft of reasons.  It did not negate the need for an Act of Court or for the final hearing contemplated by Practice Direction RC10/01.  Reference was made to Cie Noga SA v ANZ Banking Group [2003] 1 WLR 307, 321D; Lake v Lake [1955] P 336, 355; Charlesworth v Relay Roads [2000] 1 WLR 230 and FG Hemisphere Associates LLC v DRC [2010] JLR 484. 

12.      The possibility of a determination such as that dated 2^nd April, 2014, had not been canvassed at that hearing.  There was no reason why an Act of Court should have been forthcoming until reasons had been produced.  Had the prospect of an Act been forthcoming on that occasion the Applicant would have been likely to have opposed the issuing of a partial Act if it had been contemplated that it would be a "final" Act of Court.  Had the court insisted upon issuing an Act, the Applicant would have asked for time for filing an appeal to be extended until after reasons had been received or the final order handed down.  In the whole circumstances, if time had expired, the uncertainty as to when, if at all, a final substantive order had been made was sufficient explanation as to why the Notice of Appeal had not been filed earlier. 

13.      Further, if time had expired, the delay was not significant and, in any event, the Respondent Panel would not be prejudiced by reason of delay.  Where the delay in serving a notice of appeal is short and there is an acceptable excuse for it, an extension of time will not be refused on the basis of the merits of the intended appeal unless the appeal is hopeless: Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942; Pitmans v Jersey Evening Post and another [2013] JCA 149. 

14.      The decision of the learned Commissioner was fatally flawed for the reasons set out in the proposed Notice of Appeal. 

(i)        As to the learned Commissioner's failure to identify that the Respondent Panel misunderstood the law, in himself applying the wrong test and in substituting his own factual analysis:-

(a)       The Commissioner asserted that there was a "simple misstatement" of law (paragraph 19) and appeared to excuse it by reference to the officer losing his right to a pension.  Whence the Commissioner had gained his insight into the pension issue was not clear as this had not been part of any evidence or submission.  At the very least the decision should have been remitted to the Respondent to allow it to apply the law correctly, even if it came to the same decision.  The Commissioner fell into the same error as the Respondent in R v City of Westminster ex p. Ermakov (1996) 28 HLR 819. 

(b)       While the Commissioner had recited the tests to be applied in a judicial review, it was not clear that he had properly applied those tests.  At paragraph 19 he had failed to recognise that, where there was no other insight into the matter in which the Respondent had applied the law, a "simple misstatement" is clear and cogent evidence of the illegality of the decision and therefore a ground for judicial review. 

(c)       What might have been obvious from the reasons was very different to the limits of what could properly be inferred from the evidence set out in the transcript and the submissions. 

(ii)       As to allowing the Respondent Panel to correct errors in methodology, paragraphs 18 and 19 of the Commissioner's decision reflected the analysis of paragraph 4(a) of the Affidavit of Jurat Clapham, chair of the panel, produced below, whereas that analysis was not found elsewhere in the reasons handed down on 3^rd September, 2013.  

(iii)      As to failure to deal with the Respondent Panel's failure to take proper account of employment law, the Commissioner's decision did not say he found the English employment law cases irrelevant and did not mention them at all.  The matter in issue was plainly analogous to employment law obligations of good faith, albeit that the Interested Party is a member of the States of Jersey Police Force and not an employee.  The Commissioner ought to have recognised that by ignoring the English employment law cases, or placing no weight on them, the Respondent had ignored a fundamental part of the legal framework it was obliged to consider. 

(iv)      As to asserting that a "zero tolerance" policy or equivalent was not in place at the time of the conduct complained of, the Commissioner ignored the evidence that there was a "zero tolerance" policy, albeit that the words "zero tolerance" were not used to describe the process. 

(v)       As to deciding that he was not able to substitute his own decision for that of the Respondent Panel, the reasoning was neither clear nor correct. 

(vi) and (vii) As to failure adequately to consider criticisms of the Respondent Panel's analysis of evidence, and failure properly to evaluate an expert report, the criticism was that, taken as a whole, the evidence of Mr Hollywood and the other witness statement evidence before the Respondent Panel was inconsistent and the Respondent Panel did not address those inconsistencies, and took more from the evidence than the evidence disclosed. 

15.      As the present application was being dealt with on the papers, the Court put certain written queries to the Applicant's representatives and received the following written responses from Advocate Kistler:-

"(i)       First, as to when his legal representatives first appreciated that the fourteen day time limit was applicable it was indicated: 'On 17 June, 2014 it came to the attention of the Appellant's [sic] legal representatives that the time limit for filing the appeal was 14 days from the date of the order.

(ii)       Second, as to there having been no request made of the Judicial Greffier for an Act of Court following receipt of the judgment on 21 May, this was said to be 'because it was expected that an Act of Court would be forthcoming in due course once the Court has [sic] been informed of the resolution of the costs issue.

(iii)      Third, as to why there had been no response to the letter on behalf of the Interested Party dated 8 May: 'Instructions were sought by the Appellant's legal representatives on the letter of 8 May 2014 and in particular whether costs could be agreed.  The Appellant's legal representatives sought instructions on further occasions on this issue and were unaware that a cheque had been sent to the Interested Party's legal representatives.

(iv)      Fourth, as to what prompted the preparation, lodging and serving of the Notice of Appeal on 20 June, this 'was prompted by attending the meeting on 13 June 2014 and the need to proceed to [sic] with the appeal expeditiously and

(v)       Fifth, as to what was the basis for an assertion that the application was lodged at the earliest opportunity: 'The Appellant met with his legal representatives on 13 June 2014, which was the earliest convenient date for the Appellant and other members of the States of Jersey Police for a meeting first proposed in May 2014."

16.      For the Respondent, Advocate Jowitt submitted that, in deciding whether to grant an extension, the Court had to consider (a) the extent of the delay, (b) any explanation for it, (c) the prospects of success, and (d) the risk of prejudice: Crichton v Parker-Smith [2008] JCA 039 at paragraph 19.  He also observed both that applications for Judicial Review had to be made promptly and within 3 months from the emergence of grounds (RC Rule 16/3) and that the time-limit for Judicial Review appeals was one half that for ordinary civil appeals.  Given the underlying need for expedition, an application for extension in Judicial Review matters should receive particular scrutiny. 

17.      In respect of the extent of delay, Advocate Jowitt conceded that, assuming the substantive order to have been made on 21^st May, the delay was not of great length.  However, there were no proper reasons given for the failure to meet the deadline.  The terms in which the Notice of Appeal was couched indicated that there was unlikely to have been confusion: it was headed "Notice of Appeal against a Substantive Order" and the preamble referred to reasons having been handed down on 21^st May.  The absence of an Act of Court was not material.  Acts of Court were merely formal records of decisions which had already been made and decisions were effective from pronouncement.  Clear examples were injunctions and guilty verdicts.  As to the former, it was inconceivable that a defendant could happily dissipate assets between the granting of an order and the creation of an Act of Court.  Similarly, it made no sense to suggest that a sentenced individual could not be sent into custody until a formal Act had been produced.  Here, costs were being resolved between the parties comfortably before the judgment had been handed down.  The suggestion that there was, as yet, no final order was illogical in the face of a Notice of Appeal.  The fact that the Notice raised the prospect of an extension being required showed that at the time of filing the Notice the Applicant was indeed aware of the issue.  

18.      Turning to the merits, Advocate Jowitt submitted that the grounds were without any substance:-

(i)        The Commissioner had concluded that the Respondent had understood the law and properly applied it.  It was clear that he himself knew the Judicial Review tests.  He did not substitute his own factual and legal analysis.  The assertion that the pension issue had not been part of any evidence or submission was incorrect.  The information had come from email submissions from the Applicant's lawyers. 

(ii)       The Commissioner expressly confirmed that in making his determination he had not relied on the affidavit of Jurat Clapham.  

(iii)      The employment law cases were of no relevance, particularly with a body of case law in police disciplinary matters.  The Commissioner had made clear that he was reviewing the decision of the Panel of Jurats and that the Applicant's arguments had placed an incorrect gloss on the case of  Salter v The Chief Constable of Dorset [2012] EWCA Civ 1047.  

(iv)      There was no evidence of a zero tolerance policy being in place. 

(v)       The Commissioner had made it quite clear that, as the Applicant had been unsuccessful in his Judicial Review, the question of whether, had he been successful, the Commissioner could substitute his own decision for that of the Panel did not arise. 

(vi) and (vii) The submission of the Applicant amounted to no more than that the conduct was so bad that no reasonable person could have imposed a sanction other than dismissal.  That submission flowed from the inaccurate gloss on Salter.  The Commissioner had been entitled to observe both that the objection to the evidence of Mr Hollywood had not been raised before the Panel and that Mr. Hollywood's conclusions were little more than common sense. 

19.      As regards prejudice, Advocate Jowitt accepted that there was no risk of prejudice to the Respondent Panel, but pointed out the likely continuing prejudice to the Interested Party of continued delay. 

20.      For the Interested Party, Advocate Gollop adopted the submissions of Advocate Jowitt.  He emphasised the prejudice to the Interested Party.   His career and livelihood had been in jeopardy between September 2012 and the decision of the Respondent Panel in July 2013 that he be reinstated.  He had then been subject to a further period of uncertainty until the decision of the learned Commissioner in April 2014.  Given the detailed arguments before the Royal Court and the thorough judgment, it was not unreasonable for him to have thought that matters had finally been concluded.  It was unjust for him to be subject to yet further delay.  

Discussion

21.      It is clear that, in deciding whether or not to grant an extension, the Court must consider (a) the extent of the delay, (b) any explanation for it, (c) the prospects of success, and (d) the risk of prejudice: see Crichton v Parker-Smith [2008] JCA 039 at paragraph 19, following B v N [2002] JLR N-2]. 

22.      However, if the delay in serving a notice of appeal is short and if there is an acceptable excuse for that, an extension of time will not be refused on the basis of merits of intended appeal unless the prospective appeal appears to be hopeless: Palata Investments Limited v Burt & Sinfield Limited [1985] 1 WLR 942; Pitmans v Jersey Evening Post and Another [2013] JCA 149. 

23.      Looking first at the extent of the delay, the length of time concerned may appear to be modest.  In my view the time has begun to run and the date from which it did so was 21^st May when the finalised judgment was circulated.  The terms of the Act of Court of 2^nd April, 2014, made it clear that whilst the determination on dismissal had been made on that day, the judgment and reasons were to be delivered at a later date.  Practice Direction RC10/01 accordingly applied on 2^nd April and no judgment in draft could be relied upon until a final approved version had been formally handed down.  The only proper construction of the email of 21^st May is that the required juristic act happened on 21^st May.  Properly construed, Practice Direction RC10/01 does not impose a requirement of a handing down in court or of a formal hearing.  It was plain that from 21^st May the judgment could be relied on. 

24.      In consequence, the additional delay was of the order of two weeks.  Set against the provisions of Rule 6 of the 2000 Rules, that delay was fully the same amount of time again as allowed for in the Rules.  It therefore becomes of considerable importance to identify what, is the explanation for the delay. 

25.      Delays in adherence to time limits in procedural rules occur not infrequently.  Often they can arise from a misapprehension of the day on which the period commences and, typically, delay may be only of one day's duration.  Illness of a client or of a sole practitioner is not unknown as an explanation.  Separately, in relation to the substantive law of prescription or limitation, there are frequent instances of apparent lack of knowledge that the period within which to take proceedings has commenced.  

26.      As regards failure to meet procedural deadlines, instances of inadvertence do occur.  On such occasions, however, the court is generally addressed with some precision, and is only properly to be expected, as to the reason for the inadvertence.  This procedure is of considerable importance.  Procedural deadlines are set by the courts and their practitioners as being the appropriate time frames within which all practitioners ought to operate.  If they could be disregarded with impunity or with the expectation that, however unsatisfactory the reason, they would not be upheld by the courts, the interests of justice of all court users could be jeopardised both through a lack of certainty and through judges, the Greffe and the legal representatives of all parties being required to expend time which should have been available for the substantive work of the courts. 

27.      By and large the ordinary procedural timeframes in these courts are adhered to.  When that does not occur, the court expects to be addressed fully and without dissemblance as to the explanation for a delay so that it can consider, fully, the extent to which either the circumstances were unusual or the failure ought properly to be excused and how those circumstances impact either upon the immediate litigation or upon the appropriateness of the Rule in question. 

28.      As can be discerned from paragraph 15 above, the court here was concerned that the terms of the application had not engaged with the most basic issues upon which, had the hearing been an oral one, counsel ought to have anticipated that the court should be addressed. 

29.      The first query in the mind of the court was as to when the Applicant's legal representatives had appreciated that the fourteen day time limit was applicable.  There is a sense in which the question is inept, because the applicant is legally represented, and had been legally represented before the Commissioner, and the time limit is a matter of the procedural law of these courts.  To the simple query from the court, there came no proper answer.  Assuming that the conduct of the Applicant's litigation in the hands of an individual or individuals qualified in respect of the conduct of litigation in these courts, to say that on a certain date "it came to the attention" of a litigant's legal representatives that a particular time limit applied is as far removed as possible from either a reasonable explanation as to why a qualified person had not appreciated that matter at an earlier stage or from a reasoned apology as to why inadvertence led to the lack of adherence to a time frame. 

30.      The second answer, set out at paragraph 15(ii) above indicates a surprisingly jejeune approach given, as I have indicated at paragraph 10 above, that the Applicant himself submits that there is a need for expedition.  The Applicant suggests that no request was made for an Act of Court because it was expected that the need for this would arise only once the Court had been informed of the resolution of costs.  But it appears that the Applicant and his legal representatives were not communicating with each other as to whether or not there had been a resolution of costs.  Why the Applicant's legal representatives could not have clarified this is promptly is a mystery.  No good reason is put forward why the position on costs could not have been clarified within seven days of the letter of 8^th May and an Act of Court sought within seven days of receipt of the reasons on 21^st May in order that an expeditious Notice of Appeal could have been filed.  In any event, at some time in advance of filing the Notice of Appeal on 20^th June the Applicant's representatives were aware that it was arguable that time had begun to run from 21^st May. 

31.      To indicate, as the Applicant's representatives have done that the preparation, lodging and serving of the Notice of Appeal on 20^th June was merely "prompted by attending the meeting on 13 June 2014" gives no indication whatsoever as to the advice which was being tendered by the legal representatives to the Applicant.  The court is not offered any indication as to what was said at that meeting, but the only reasonable assumption is that, at that meeting, something was said which raised the issue of appropriate time frame.  Otherwise no Notice of Appeal would have been served and filed.  Further, nothing is said as to why a further seven days was allowed to elapse in circumstances where the possibility of a missed deadline had emerged. 

32.      The final query by the court was an attempt to explore what was the basis for an assertion, on behalf of the Applicant, that the Notice of Appeal had been lodged at the earliest possible opportunity.  The response that 13^th June, 2014, "was the earliest convenient date" for lawyer and client to meet entirely fails to engage with the importance of expedition in the interests of justice for all parties to litigation. 

Conclusion

33.      In my opinion there is no proper basis upon which the court can grant an extension.  Whilst the delay was tolerably modest in terms of actual time, it was material having regard to the time frame set in the Rules.  No proper explanation has been given as to why the procedural time limit was not adhered to and it is, therefore, unnecessary to embark upon consideration of risk of prejudice. 

34.      Had there been material prospects of success in relation to any of the grounds of appeal proposed by the Applicant that would have been taken into account in balancing the complete failure to explain the extent of the delay.  As it is, having considered in detail the reasoning of the learned Commissioner and the submissions made to me, I consider the proposed grounds of appeal to be without substance.  

35.      As regards the first proposed ground, and the issue relating to the reference to a "simple misstatement" (which appears at paragraph 16 of the finalised judgment), the learned Commissioner does not assert that there was a "simple misstatement" of law.  The reference is to the "simple misstatement" as identified by the learned Commissioner in paragraph 15.  It follows that there is no substance in this proposed ground. 

36.      As regards the second proposed ground, it is clear from paragraph 18 of the judgment that the learned Commissioner had come to his conclusion simply from a reading of the transcript and applying common sense to the reasoning of the Respondent Panel and not by relying upon the affidavit of Jurat Clapham. 

37.      As regards the employment law cases, and obligations of good faith, no indication is given as to the extent, if any, to which specific propositions in law to be derived from them would have added anything to the views of the Court of Appeal in England in Salter, as narrated by the learned Commissioner at paragraphs 23 and 24 of the Judgment. 

38.      As regards the existence or otherwise of a "zero tolerance" policy, the proposed grounds of appeal do not suggest that the learned Commissioner was in error in the way in which he expressed matters in paragraph 26 of his decision. 

39.      Turning to proposed ground (v) given the views which I have expressed in relation to grounds (i) to (iv) this ground would not arise. Ground of Appeal (vi) is wholly inspecific.  Ground (vii) is not only inspecific but fails to reflect upon the treatment given by the learned Commissioner at paragraphs 33 and 34 of decision. 

40.      For all these reasons the application is refused. 

Authorities

Court of Appeal (Civil)(Judicial Review) Rules 2000.

Cie Noga SA v ANZ Banking Group [2003] 1 WLR 307, 321D.

Lake v Lake [1955] P 336, 355.

Charlesworth v Relay Roads [2000] 1 WLR 230.

FG Hemisphere Associates LLC v DRC [2010] JLR 484.

Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942.

Pitmans v Jersey Evening Post and another [2013] JCA 149.

R v City of Westminster ex p. Ermakov (1996) 28 HLR 819.

Crichton v Parker-Smith [2008] JCA 039.

Salter v The Chief Constable of Dorset [2012] EWCA Civ 1047.

B v N [2002 JLR N-29].