"12.4 In my judgment, the highest it can be put is that there is a longstanding custom and practice of appeals against prohibition orders being issued and mitigated in this court. Absent and provision mandating issue in the Administrative Court such custom and practice, and does not however, mean that the appeal was wrongly filed in the King's Bench Division. Further, even where the court office concludes there has been an error of procedure, such error does not invalidate this step taken (here issued in what was thought to be the wrong court) unless the court so orders,CPR Rule 3.10 . I would therefore suggest that in future appeals lodged by teachers in the King's Bench Division might properly be accepted and then transferred to the Administrative Court for ease, for case management and hearing. 13. Whatever should have happened, the court must deal with the case on its facts. The original filing was rejected, and the court is dealing with an appeal issued out of time, such that it is necessary to consider Mr Sutcliffe's application to extend time. That said, my conclusions that Mr Sutcliffe had validly issued his appeal in the King's bench division on 8 June, and that such appeal was wrongly rejected by the court to plainly very important. Neither he nor his solicitors were at fault and in these exceptional circumstances, I have no doubt that strict application of the 28 day limit would impair the very essence of the statutory right of appeal, such that the court must extend time in this case. This appeal must therefore be determined upon its merits."
"The error made by the claimant was a procedural error in relation to a valid claim. It was an is readily corrected by the transfer of the claim to the ACO, although it appears that for all practical purposes, that has been done. Moreover, so far as necessary, the date of filing should be corrected, search recorded as7 May 2024 . In each case this can and should be done underCPR Rule 3.10 ."
"36. It has been held, in the public law context of removal from the jurisdiction of an alien, that a litigant must answer for the failings of his legal advisers, with the result that he was unable to obtain the reopening of an adjudicator’s decision on the ground of such advisers’ negligent failure to inform him of the hearing: R v Secretary of State for the Home Department, Ex p Al-Mehdawi[1990] 1 AC 876 . Any other decision would, it was said, come “at the cost of opening such a wide door which would indeed seriously undermine the principle of finality in decision-making”: per Lord Bridge of Harwich, at p 901e. In Ex p Al-Mehdawi there was however a residual discretion in the Secretary of State to refer the matter back to an adjudicator. In contrast, in an asylum context where no such residual discretion existed, the Court of Appeal in FP (Iran) v Secretary of State for the Home Department [2007] Imm AR 450 held ultra vires immigration rules deeming a party to have received notice of a hearing served on the most recent addresses notified to the relevant tribunal and requiring the tribunal to proceed in the party’s absence if satisfied that such notice had been given. The solicitors acting for the asylum seekers in FP (Iran) had failed to give the tribunal new addresses to which the asylum seekers had been moved by the National Asylum Support Service. Distinguishing Ex p Al-Mehdawi, the Court of Appeal held that there was “no universal surrogacy principle” which (reformulated) rules “would have to depart from in order to operate justly”: para 46. The rules were framed so as to be “productive of irremediable procedural unfairness”. Both the appellants were “among those affected by this deficiency, because both have lost the opportunity to be heard through the default of their legal representatives and not through their own fault”: para 48. This decision (reached in the context of aliens) turned on common law principles regarding access to justice, though reference was made by analogy to the position under the European Convention for the Protection of Human Rights and Fundamental Freedoms. 37. The position is a fortiori in so far as article 6.1 is directly applicable in Mr Halligen’s case. It is clear that the statutory provisions regarding the permitted periods for appeals may in individual cases impair “the very essence of the right” of appeal. The previous judicial expressions of concern are eloquent about the potential and actual unfairness of the position in which prisoners find themselves in trying to meet the statutory requirements, with such aid as the prison legal services department or legal advisers can, under difficult conditions, provide. The problems of communication from prison with legal advisers in the short permitted periods of seven and 14 days are almost bound to lead to problems in individual cases. It is no satisfactory answer that a person wrongly extradited for want of an appeal as a result of failings of those assisting him might, perhaps, be able to obtain some monetary compensation at some later stage. Strict application of the surrogacy principle would be potentially unjust. I am not persuaded that the interests of finality and certainty outweigh the interests of ensuring proper access to justice by appeal in the limited number of extradition cases where this would otherwise be denied. There would not be “a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."
"39. In the present case, there is no reason to believe that Parliament either foresaw or intended the potential injustice which can result from absolute and inflexible time limits for appeals. It intended short and firm time limits, but can only have done so on the basis that this would in practice suffice to enable anyone wishing to appeal to do so without difficulty in time. In these circumstances, I consider that … the statutory provisions concerning appeals can and should all be read subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process held to exist under article 6.1 in Tolstoy Miloslavsky. The High Court must have power in any individual case to determine whether the operation of the time limits would have this effect. If and to the extent that it would do so, it must have power to permit and hear an out of time appeal which a litigant personally has done all he can to bring and notify timeously."
"14. …. There is good reason for there to be time limits with a high degree of strictness. However, one only has to consider hypothetical cases to appreciate that, without some margin for discretion, circumstances may cause absolute time limits to impair “the very essence” of the right of appeal conferred by statute. Take, for example, a case in which a person, having received a decision removing him or her from the Register, immediately succumbs to serious illness and remains in intensive care; or a case in which notice of the disciplinary decision has been sent by post but never arrives and time begins to run by reason of deemed service on the day after it was sent (Nursing and Midwifery Council (Fitness to Practice) Rules 2004 , rule 34(4)). In such cases, the nurse or midwife in question might remain in blameless ignorance of the fact that time was running for the whole of the 28 day period. It seems to me that to take the absolute approach in such circumstances would be to allow the time limit to impair the very essence of the statutory right of appeal. 15. The real difficulty is where to draw the line. Mr Pascall, on behalf of the appellants, does not contend for a general discretion to extend time. Parliament is used to providing such discretions, often circumscribed by conditions (see, for exampleEmployment Rights Act 1996, section 111(2) , in relation to unfair dismissal). The omission to do so on this occasion was no doubt deliberate. If Article 6 and section 3 of the Human Rights Act require Article 29(10) of the Order to be read down, it must be to the minimum extent necessary to secure ECHR compliance. In my judgment, this requires adoption of the same approach as that of Lord Mance in Pomiechowski. A discretion must only arise “in exceptional circumstances” and where the appellant “personally has done all he can to bring [the appeal] timeously” (paragraph 39). I do not believe that the discretion would arise save in a very small number of cases….."
"49 Thus, there is a discretion (or duty) to extend time for the bringing of a statutory appeal but only in exceptional circumstances, namely where to deny a power to extend time would impair the very essence of the right of appeal. That is the key question. Once the discretion (or duty) arises, it must then be exercised to the minimum extent necessary to secure ECHR compliance. 50 As set out above, Lord Mance at [39] in Pomieschowski identified the power to permit and hear an out of time appeal if statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access under article 6 as identified in Tolstoy. He went on (in the same sentence) to add that the appeal would be one “which a litigant personally has done all he can to bring and notify timeously.” Maurice Kay LJ adopted this sentence in Adesina at [15], as have other courts subsequently (see for example Anixter Ltd v Secretary of State for Transport[2020] EWCA Civ 43 ;[2020] 1 WLR 2547 at [67]). …… 52 I do not consider that Lord Mance in [39] of Pomiechowski, having referred to the relevant test by reference to Tolstoy, was then imposing an additional condition (beyond the need for the existence of “exceptional circumstances”) by reference to the efforts made (or not) by an appellant to appeal in time. Rather, he was simply identifying the type of situation in which exceptional circumstances sufficient to give rise to the discretion (or duty) may arise. Put simply, and without being in any way prescriptive, exceptional circumstances are unlikely to arise where an appellant has not personally done all that they could to bring the appeal in time. There is no independent jurisdictional requirement that a litigant must have done personally all that he could."
"33. At my request, the parties sent me written submissions on the surrogacy principle after the hearing. The conclusion I draw from the authorities and textbooks cited is that the Court does not ordinarily distinguish between a litigant and his legal advisers: see Hytec Information Systems v Coventry City Council[1997] 1 WLR 1666 ; Hashtroodi v Hancock[2004] 1 WLR 3206 , at [35]; Atkas v Adepta[2011] QB 894 , at [91]; R(Good Law Project) v Secretary of State for Health and Social Care[2022] 1 WLR 2339 , at [61]. However, the surrogacy principle is not universally applied in cases where it would be unjust to do so: see Pomiechowski (above); FP (Iran) v Secretary of State for the Home Department [2007] Imm AR 450, R (A) v Criminal Injuries Compensation Board ex parte A[1999] 2 AC 330 ; Greece v O’Connor[2022] UKSC 4 ,[2022] 1 WLR 908 ; Sangra v Secretary of State for the Home Department 1997 SLT 545 (Court of Session Outer House); R (Nori) v Secretary of State for the Home Department[2011] EWHC 1604 (Admin) ."