Gercans v The Government of Latvia [2008] EWHC 884 (Admin)

Case No CO/11607/2007[2008] EWHC 884 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of JusticeDate Wednesday, 27th February 2008
Strand
London WC2A 2LL
B e f o r e:
LORD JUSTICE RICHARDS
MRS JUSTICE SWIFT DBE
Between
GERCANSClaimantv
Between
THE GOVERNMENT OF LATVIADefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Miss C Lloyd-Jacob (instructed by Whitelock & Storr) appeared for ClaimantMiss C Powell (instructed by the CPS) appeared for Defendant
JUDGMENT

LORD JUSTICE RICHARDS:

The

[1]appellant is the subject of a European arrest warrant issued by the respondent court. The case falls within Part 1 of the Extradition Act 2003. On 20th December 2007 District Judge Nicholas Evans ordered the appellant's extradition. The appellant seeks to appeal to the High Court against that order under section 26 of the 2003 Act. The matter has been listed before us today for the sole purpose of deciding whether there is jurisdiction to entertain the appeal. That question depends on the application of section 26(4) which provides that:
"Notice of an appeal under this section must be given in accordance with the Rules of Court before the end of the permitted period, which is seven days starting with the day on which the order is made."
The Practice Direction to CPR Part 52 provides in paragraph 22.6A that the appellant's notice must be filed and served before the expiry of seven days, starting with the day on which the order is made. Thus, it reflects the terminology of the statute.[2]The evidence is that a representative of the appellant's solicitors went to the Royal Courts of Justice on 24th December to lodge the notice of appeal but she found the office closed (indeed, the building was locked) and was unable physically to lodge the papers. On the same day, she sent an email to the Administrative Court Office explaining what had happened and saying that a member of the firm would lodge the papers as soon as possible. The court office was, of course, also closed on the following two days, 25th and 26th December. It reopened on 27th December and on that day a different representative of the appellant's solicitors attended the court office and lodged the papers.[3]The papers were then served on the Crown Prosecution Service, acting for the requesting court, by a letter from the appellant's solicitors dated 27th December and received on 31st December. In addition, on 27th December a fax was sent by the appellant's solicitors to the Crown Prosecution Service with a cover sheet and the front page of the notice of appeal, the fax containing an indication that the full enclosure had been sent by Document Exchange.[4]The objection raised is that in those factual circumstances notice of appeal was not given within the permitted period of seven days laid down by section 26(4), a period which it is said expired on 26th December. In District Court of Vilnius City v Barcys [2008] 1 AER 733, the court was dealing with an appeal by the requesting state under section 28 of the 2003 Act which contains in subsection (5) a time limit materially identical to that applying under section 26(4) to an appeal by the requested person. The notice of appeal in Barcys had been filed and served outside the seven day period. The court held that there was no power to extend the statutory time limit and that the late filing and late service of the notice of appeal were each sufficient to deprive the court of jurisdiction to entertain the appeal.[5]In relation to late filing of the notice, the court was understandably concerned about reaching such a conclusion, because the reason for the one day delay in filing was the wholly unexpected closure of the court building as a result of an electricity black-out on the day when the attempt to file had first been made. Both members of the court nevertheless took the view that on the true construction of the legislation there was no power in the court to do anything about the situation. The same concern did not arise in relation to late service which lay wholly within the control of the appellant or his solicitors.[6]In R (on the application of Mendy) v Crown Prosecution Service [2007] EWHC 1765 Admin, Collins J applied Barcys to an appeal by a requested person under section 26. It was another case in which there was late filing and late service of the notice of appeal. There, too, it was held that the court had no jurisdiction to entertain the appeal.[7]These issues were examined further by a court over which I presided in Mucelli v The Government of Albania [2007] EWHC 2632 Admin, a case under Part 2 of the 2003 Act but where the relevant statutory provisions were again materially identical, save that the permitted period under Part 2 is 14 days rather than seven days. In Mucelli the court looked in some detail at the possibility of dispensing retrospectively with the service of the notice of appeal (as distinct from extending time for service, since that had been ruled out in Barcys). The court held that the discretion existed, but it would not be proper in the circumstances to exercise that discretion.[8]Before us, Miss Lloyd-Jacob has advanced on the appellant's behalf various arguments why the court should assume jurisdiction, notwithstanding the apparent filing and service out of time. In her written submissions she has suggested the grant of an extension of time. She has espoused the route examined in Mucelli of retrospective dispensing of service. She has raised a possible alternative claim which was mentioned in Mendy, one that does not in itself amount to an appeal under the 2003 Act. She submits that the court should find some way of avoiding a rigid application of the rules which, it is submitted, would remove the appellant's right of access to the court and give rise to substantial injustice.[9]The difficulty with all such arguments is that they do not face up to the approach of the court in Barcys, as followed in the subsequent cases to which I have referred. I do not see how, in the light of Barcys and those subsequent cases, it can be open to this court to treat the time limit in section 26(4) as extendable, nor can I accept that sending an email to the court, as was done here, amounts to the giving of notice of appeal.[10]As regards the filing of the notice of appeal, however, I am troubled, in the same way as the court in Barcys was troubled, about the rigid operation of the statutory time limit in circumstances where an appellant has been prevented from complying with that time limit through no fault of his own but by the unforeseen closure of the court office.[11]That may not have given rise to any actual injustice in the particular circumstances of the present case, because the appellant was represented by solicitors and the solicitors could have filed the notice of appeal by fax, even though the court office was closed. The Practice Direction to Part 5 of the Civil Procedure Rules provides in paragraph 5.3 that a party may file a document at court by sending it by fax. A potential drawback is that if it is delivered by fax after 4 pm it will be treated as filed on the next day the court office is open. That should not be a problem here, because the email sent to the Administrative Court Office explaining what had happened on 24th December was sent just after midday, so a fax could easily have been sent on 24th December which would have been treated as delivered on the same day and would have resulted in the timely filing of the appellant's notice. The Practice Direction provides that a fax should not be used, except in unavoidable emergencies, to deliver a document which attracts a fee; but where such a situation arises, the fax should explain the emergency and include an undertaking as to payment of the fee. That provision would not have stood in the way of filing in the circumstances that arose on 24th December. I note in passing that the use of a fax for filing of an appellant's notice is supported by what was said by Collins J in paragraph 9 of the decision in Mendy.[12]I am doubtful, however, whether that is truly an end to the matter because this case does highlight the potential unfairness that can arise from a court office being closed, and one can readily imagine that although solicitors would be aware of the possibility of filing by fax and would have a fax, that might not be true of an appellant acting in person. The position here is that not only was the office closed between 24th and 26th December, but it must also have been closed during the immediately preceding weekend of 22nd and 23rd December. So in practice the appellant had only two days from the District Judge's order in which to file the notice at the court office. I would wish to see further consideration being given to how the statutory time limit is intended to operate in those circumstances.[13]In cases falling under the Civil Procedure Rules, closure of the court offices is generally not a problem since Rule 2.8(5) provides that:
"When the period specified by the Rules or a Practice Direction or by any judgment or court order for doing any act at the court office ends on a day on which the office is closed, that act shall be in time if done on the next day on which the court office is open."
That provision was raised in argument on the appellant's behalf in Barcys, but it was apparently conceded that it did not apply directly because the time limit in question is statutory rather than a time limit under the Rules or under the Practice Direction, a judgment or a court order. The court in Barcys seems to have proceeded on the basis of that concession.[14]It seems to me that the point should be looked at further. It is true that the time limit here is statutory, but the statutory provision itself provides that notice must be given "in accordance with Rules of Court" before the end of the permitted period. By that language, the statute itself brings into play the Rules of Court, and although, for the reasons given in Barcys, the statute precludes the operation of the Rules allowing extension of time, it may not preclude the operation of the Rules in so far as they lay down when an act is to be taken to have been done. I think it arguable that the effect of Rule 2.8(5) is that where, as here, the period specified for filing a notice of appeal ended on 26th December and the court office was closed on that day, the filing was in time if done on 27th December, the next day when the court office was open. In those circumstances, it seems to me, it may well be that the notice of appeal was given in accordance with the Rules of Court before the end of the permitted period.[15]The case of Aadan v Mayor and Burgesses of the London Borough of Brent, a decision of the Court of Appeal dated 5th November 1999, is also of potential significance. Reference is made to it in the notes to CPR 2.8 in the White Book. The case related to a statutory time limit. In it the Court of Appeal, in summary, applied the decision in Pritam Kaur v S Russell and Sons Ltd [1973] 1 QB 336, in which Lord Denning MR had said this:
"So I am prepared to hold that when a time is prescribed by statute for doing any act and that act can only be done if the court office is open on the day when the time expires, then if it turns out in any particular case that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open."
That line of reasoning would appear to be in line with the way I have suggested the matter might also be analysed by reference to the current Civil Procedure Rules, to which section 26(4) makes reference - subject, of course, to the question whether, if a notice of appeal can be filed by fax, there is no need for the court office to be open and the reasoning of Lord Denning, as applied in Aadan, can be said not to bite.[16]I have ventilated the issue and made clear that I would not regard Barcys as necessarily standing in the way of further consideration of it, because in Barcys the point was the subject of a concession and it was not therefore considered as fully as it would otherwise have been. Indeed, the point was not necessary for the decision, given that the same result followed from what was said in Barcys about late service of the notice of appeal irrespective of whether the notice could be treated as having been filed in time.[17]But that brings me to the issue of late service in the present case, an issue which, in my judgment, is as fatal to the appellant's position as it was to the appellant in Barcys, and which therefore makes it unnecessary to reach any concluded view on the question whether the notice of appeal in this case was filed in time. On no view can it be said that the notice of appeal in this case was served in time. It was not posted to the Crown Prosecution Service until 27th December at the earliest, the date of the covering letter. The deemed date of service, in so far as one is concerned with the transmission of the documents by post or by Document Exchange, will have been no earlier than the second day after posting, that is to say 29th December. The letter did not in fact arrive until 31st December. The fax sent on 27th December did not amount to service, including as it did only the first page of the notice of appeal. No explanation has been given as to why proper service was not effected on the Crown Prosecution Service as agent for the respondent court earlier than it was.[18]Barcys is authority for the proposition that time for service cannot be extended. Mucelli came down against dispensing with service on the facts of that case when no attempt had been made to serve the notice within the time limit, and to dispense with the requirement of service would have been an unacceptable circumvention of the statutory time limit. The same reasoning applies here, and in my view there is nothing in the circumstances of the case that would warrant what would be a highly exceptional exercise of discretion in the appellant's favour.[19]For those reasons, I have reached the conclusion that there was a failure to comply with the statutory time limit, that the failure cannot be cured, and that the consequence of the failure is that this court does not have jurisdiction to entertain the appellant's appeal. Accordingly, I would dismiss the appeal.

MRS JUSTICE SWIFT: I agree.

[21]MISS LLOYD-JACOB: Could I have a Legal Aid assessment?[22]MR JUSTICE RICHARDS: Yes, certainly. Thank you very much for your assistance.

Cited in 5 later judgments