Sikander Grocers Ltd v Secretary of State for the Home Department [2026] EWHC 883 (KB)

[2026] EWHC 883 (KB)Case No KA-2024-000101
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Date of Judgment: Thursday 16 April 2026
Before
MRS JUSTICE FOSTER
Between
SIKANDER GROCERS LIMITEDAppellant/ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant/Respondent
Mr J Gazzain (instructed by Abbott Solicitors LLP) for AppellantMr Michael Fry (instructed by Government Legal Department) for DefendantHearing Hearing dates: 22 July 2025Draft Circulated 3 April 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on Thursday 16 April 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................Date 2026-04-16

Introduction and the Facts

[1]I shall refer to the Appellant as SGL and the Respondent as SSHD.[2]On 20 December 2023, SGL was issued with a civil penalty notice requiring payment of £15,000 which stated that SGL had employed an illegal worker in breach of section 15 of the Immigration, Asylum and Nationality Act 2006. Following procedures under that Act SGL lodged an objection. The objection was rejected by a notice given on 30 January 2024.[3]SGL chose to appeal. Time for appealing expired under the statute on 26 February 2024.[4]The documentation received from the SSHD explained how one might pay the imposed fine of £15,000 and also explained an appeal as follows:
“Calculation of your penalty amount Following consideration of your objection, the penalty decision has been maintained, and the calculations are as follows: You have been found liable for employing one worker in breach of section 15 of the Immigration, Asylum and Nationality Act 2006. The Civil Penalty Calculator Level One has been applied to your case, with a starting point of £15,000 per worker. Three mitigating factors have been considered to determine whether your penalty can be reduced. Mitigating factor 1 - evidence of reporting suspected illegal workers. You have not provided any evidence to indicate that you have reported your suspicions about your employee's entitlement to work in the UK to the Sponsorship & Employers’ Helpline. Your penalty has not been reduced for this factor. Mitigating factor 2 - evidence of active co-operation. You have not actively co-operated with the Home Office by: • providing Home Office officials with access to your premises, recruitment and employment records and document checking systems when requested; • responding promptly, honestly and accurately to our questions and information requests; • making yourself available to our officials during the course of our investigations if required; and • fully and promptly disclosing any evidence you have which may assist us in our investigations. Your penalty has not been reduced for this factor because you did not respond to the Information Request sent to you on 21 November 2023. Mitigating factor 3 - evidence of effective document checking practices together with mitigation for factors 1 and 2: this is not applicable as you did not meet the criteria for mitigating factors 1 and 2. Your penalty has not been reduced for this factor. Your penalty has been maintained at £15,000 for the employment of one worker How you appeal .. you may appeal against your civil penalty in a County Court … if you wish to do so you must do so by 26 Feb 24. It mustbe filed using N161… completed form accompanied by payment of relevant court fee.”
It also explained they were required to serve on the Respondent and gave an email address.[5]The evidence in this case is somewhat sparse. For the purposes of the appeal, I take the evidence to have been as explained by SGL’s solicitors in their drafted appeal documents and read with the statement of the trainee solicitor who attempted to file the documents at court. The trainee solicitor made a statement shortly after the events in question, on 22 March 2024.[6]The evidence as it is recorded by Mr Gazzain in his skeleton argument was as follows [emphasis has been added]: “7. The Appellant solicitors served the appeal documents on 26th February 2024. Ms Shanzay Khan, a trainee solicitor, from the Appellant solicitor firm filed the appeal documents in person at Luton County Court on 26th February 2024, she communicated with an Usher namely, Umair and dropped the bundle in the box provided by the court for hand deliveries.Also, she had taken a Cheque and Debit Card to pay the court fees and informed the Usher of the same. She also asked the Usher if she could speak to an admin staff or submit the bundle in the office to which he confirmed no staff was available at that time to take the bundle. Ms Khan placed her trust in court’s staff as the Usher confirmed that the court should be trusted in checking the drop in box daily to ensure deadlines are not missed. As there was no facility available for payment by debit card, she left the bundle with the cheque of appropriate fees. The Usher also confirmed the cheque was written correctly; therefore, Ms Khan trusted his competency as an Usher. Ms Khan also emailed the Court and the Respondent at 3:38pm on 26th February 2024 to ensure it was served correctly within a timely manner. She correctly served the appeal documents on the following email addresses: - enquiries.luton.countycourt@justice.gov.uk – County Court at Luton - newproceedings@governmentlegal.gov.uk - the Respondent The appeal documents were returned to the Appellant’s solicitors on 29th February 2024 via post with a received stamp dated 27th February 2024 and a letter dated 26th February 2024 stating the reason ‘your cheque is not made to the correct payee. Please make your cheque payable to HMCTS with a case/claim number. The letter confirms that the bundle was taken out of the drop box and examined on 26th February 2024 and therefore, the letter was dated 26th February 2024 instead of 27th February 2024. The court could not have dated the letter wrongly as the drop box is checked daily. There is no space for error.11. The court must have stamped it on 27th February 2024 as the bundle was posted back to the Appellant’s solicitors on that date which is the reason why the Appellant’s solicitors received it on 29th February 2024, two days later. This confirms that the bundle was indeed checked on the 26th February 2024 as it took 2 days to reach the Appellant’s solicitors from 27th February 2024 postal date. Upon receiving the bundle from the court on 29th February 2024, the Appellant solicitors corrected the error on the payable cheque, filed and served the appeal documents at Luton County Court the same day they received it which was on 29th February 2024.12. The Appellant’s solicitors wanted to pay by card on 26th of February 2024 but were advised it is not necessary as the cheque was correct and sufficient payment method, and it could be submitted in the bundle drop in box in court premises. Furthermore, the Luton County court counterservice is available by appointment only and between the hours of 10am to 2pm (by prior appointment only). …” ..[7]In her statement Ms Khan said this:
“8. In order to ensure the appeal was filed properly and in time. I attempted to drop the bundle off with the cheque to the Luton County Court whereby I was served by an Usher namely Umair. The Usher refused to take the bundle as according to him the bundle should not be served at Country Court in Luton. Upon which I clarified that the appeal paper can be served at Luton County Court by showing him the Objection Outcome Notice dated 26th January 2024 and guidance notes. 9. The Usher Umair was adamant that I am not supposed to hand deliver the bundle at Luton County Court. Although, if I wish I can drop it there for the admin staff to look at and they would then return it to Abbott Solicitors as it should not be served there. He further confirmed that I do not need to pay using the firm’s card I took with me and the cheque was fine and can be submitted with the bundle.If the cheque was an issue he could have highlighted it. Therefore, I assumed the cheque would be acceptable method of payment. 10. I hand delivered the bundle at the Luton County Court in the box provided on 26th February 2024 straight after speaking to the Usher Umair. I also emailed the same to the Luton County Court and the New Proceedings for the attention of the Secretary of State of the Home Department. Therefore, the service was done properly and in time. (Please refer to the same refence as Exhibit 2). 11. The bundle was returned in the post with a received stamp on the cover letter dated 27th February 2024 with a letter from the HMCTS dated 26th February 2024. The letter confirmed the service took place on 26th February 2024. The letter requested the cheque to be corrected and written again with the correction that the cheque is payable to HMCTS. (I hereby attach a Letter as Exhibit SL3) 12. Furthermore, the letter stated that the N161 Form required a case/claim number of the matter we are appealing against in section 1. 13. The bundle was correct in accordance to the letter from the HMCTS and dropped off again without any issues.”
[8]Exhibited to the statement is a letter on headed writing paper from the solicitors dated 26 February 2024 to the court which obviously accompanied the papers which Ms Khan sought to deposit.[9]The email Ms Khan speaks of sending thereafter shows it was sent at 15.38. i.e. it was within court hours, meaning the attempt to speak to someone at the counter was within court hours. It explained what had happened and enclosed further service of the documents to the Court by email to the County Court. It was headed “Bundle-Sikander Grocers Ltd” “ RE: SIKANDER GROCERS LTD -v- SECRETARY OF STATE FOR THE HOME DEPARTMENT We write in relation to the above matter. We act for the Appellant in these proceedings. It is important to highlight that the bundle with three copies was hand delivered at the Luton County Court with a cheque in the sum of £ 151 .00 court fee. Please find attached the bundle comprising the following documents for your attention: 1. Duly completed and signed Form N161 2. Grounds of Appeal 3. Notice of Acting 4. Notices and Penalty If you have any questions, please do not hesitate to contact us. Should you have any queries do not hesitate to contact us. Kind Regards, [etc].” Please find attached the bundle comprising the following documents for your attention: Kind Regards, [etc].”

Please find attached the bundle comprising the following documents for your attention:

[10]The email thus explains that the bundle and three copies was already hand-delivered at the Court with a cheque for £151.00.[11]As described in SGL’s representations, the Court returned the papers. With the papers was the letter in the form of a tick box pro forma from the Court dated 26 February 2025 - suggesting the papers were in fact dealt with on 26th rather than 27th indicated by the date stamp. The first box was ticked beside the wording:
“Your cheque was not made out to the correct payee. Please make your cheque payable to HMCTS”
. Other (unticked) boxes were “the documents are not signed” and “Your cheque has not been signed”. The box “Other” was ticked – incorrectly in fact – and a handwritten message beside it asked for the claim number of the case against which they were appealing. In this case of course, as the Judge below noted, this matter was a statutory appeal pursuant to section 17 of the Immigration, Asylum and Nationality Act 2006. The Court did however date stamp SGL’s notice 27 February “Rec’d Luton County Court Acct No 22655 Fee” which might be thought to reflect a fee paid. As seen, they at some point rejected the cheque because it said “My HMCTS” as opposed to “HMCTS” as the payee.[12]The letter although dated 26 February was it seems received with the returned papers by the solicitors on 29 February 2024 and on that day the correctly drawn cheque was provided. The application was stamped by the Court on 1 March 2024.[13]No contrary evidence was submitted below to the Judge nor was any factual challenge made to Ms Khan’s evidence. Mr Fry for the SSHD described the evidence as “flimsy” and that it was not safe to make clear deductions as to what had actually happened that day. I have concluded there is sufficient evidence for me to conclude that Ms Khan had significant difficulties not of her own making at Luton County Court. I also conclude as is expressed in the appeal documents, that she proffered payment of the appropriate fee in a generally acceptable form, namely by card in the solicitors’ firm’s name, but that was refused. I accept she arrived wishing to speak with a member of counter staff and was refused, and also that she came armed with more than one method of payment. I further accept as set out by SGL’s solicitors that she was misled by the only available court staff (who purported to give her (erroneous) instructions about the filing of the bundles thereby representing that he knew the system and was in a position to advise), that the cheque she made out was acceptable when it was not. It is stated:
“As there was no facility available for payment by debit card, she left the bundle with the cheque of appropriate fees. The Usher also confirmed the cheque was written correctly; therefore, Ms Khan trusted his competency as an Usher.”
[14]Ms Khan’s own statement is consistent with this although it uses different language to explain what happened. As I have said there is no contrary factual evidence. It is not accurate to dismiss the evidence as “flimsy” and I proceed on the basis this is what happened. The factual issues were not extensively explored below because the Judge was not invited to interpret the statute so as to include an exceptional circumstances construction in respect of time.[15]The core problem was, following rejection of the offered card payment, which was rejected by the Court, that there was an error in the name of the payee. The cheque was made out to “My HMCTS” not “HMCTS”. It appears explicable since in fact the online payee is designated “My HMCTS” but here, over the counter, the payee ought to have been represented as simply “HMCTS.”[16]Given the date of bringing the appeal was notified as 1 March, the Court below decided on the papers that the application was out of time. A hearing of the appeal on that issue was arranged after which HHJ Murch made an order on 12 March 2024 dismissing the appeal, concluding SGL was out of time and that he had no discretion to extend time under the 2006 Act. The Appellant applies here to set aside the Order of HHJ Murch. Mr Justice Ritchie granted permission to appeal on 5 March 2024. After outlining the statutory tests, he succinctly stated the factual background (which I gratefully adopt), and his reasons for permission thus:
“Factual matrix 4. On 20.12.2023 the Appellant was issued with a civil penalty notice requiring payment of £15,000 and asserting that SGL had employed an illegal worker in breach of section 15 of the Immigration, Asylum and Nationality Act 2006… The Appellant lodged an objection and that was rejected by a notice given on 30.1.2024. The Appellant’s solicitor put the notice of appeal in the Court drop box on 26.2.2024 when her solicitor attended Court ready to pay. Her solicitor also emailed the Court with a copy of the notice. The problem was that her cheque was made out to “My HMCTS” not “HMCTS”
. The Court stamped the letter on 27.2.2024 and returned it because the cheque was not made out to HMCTS. On 29.4.2024 a correctly made out cheque was sent to the Court. The notice was then issued on 1.3.2024. The Court decided on paper that the application was out of time. 5. The Appellant applied to set aside. The Judge considered the case law on wrong court fees and relevant dates and concluded that there was no discretion to extend time and the notice was late. On 15.5.2024 HHJ Murch dismissed the Appellant’s application to set aside the order which he made on 12.3.2024 dismissing the appeal. The Appeal had been dismissed because it was not made within the relevant time limit (28 days). The notice of appeal should have been filed and issued on Monday 26th February but was actually issued on Friday 1st March 2024. 6. In the notice of appeal the Appellant asserts that:
“on 26th February 2024, she communicated with an Usher namely, Umair and dropped the bundle in the box Provided by the court for hand deliveries. Also, she had taken a Cheque and Debit Card to pay the court fees and informed the Usher of the same. She also asked the Usher if she could speak to an admin staff or submit the bundle in the office to which he confirmed no staff was available at that time to take the bundle.” … “As there was no facility available for payment by debit card, she left the bundle with the cheque of appropriate fees. …”
[17]The Appellant highlights that the correct documents were sent to the court by email in time – although, of course, no further payment as Ms Khan had understood that had been accomplished.

Judgment Below

[18]As stated, the case was not argued on quite the same basis before the Judge below but he (with respect, properly), viewed the matter as a question of statutory construction. Those who argued it before him did not bring to his attention the arguments and cases considered by me.[19]The decision of HHJ Murch was in the following terms:
“This is an appeal under section 17 of the [Immigration and Asylum Act 2006] Act. Having considered the appellant’s notice, it appears to be an appeal under section 17(4A)(b)(ii) of the Act. Accordingly, as a result of section 17(4D) of the Act, any appeal has to be brought by 26 February 2024 (being the end of the period of 28 days beginning at the “relevant date” which in this case was 30 January 2024, that being the date specified in the rejection outcome notice as the date on which it was given). The Court is of the view therefore that the appeal was not brought in time. There being no power under the Act to extend the period in which an appeal must be brought, the Court is of the view that it does not have power to entertain the appeal.”
[20]He also said the following about the relevance of the fee:
“20. The “relevant date” is determined by subsection 4D as the date specified in the notice as the date on which it is given. The notice specifies the date of 30 January. Time therefore starts to run from that date, and finished on 26 February 2026, being the twenty eighth day. That takes me to the second question: when in this case was the appeal commenced? The appeal was brought in my view when the appropriate fee was paid. This follows from Practice Direction 52B at paragraph 4(1) which says: “The appeal is brought by filing the appellant’s notice, accompanied by the appropriate fee or an application for a dispensation.” 21 That is clear again in my view. That is when the appeal is brought. There is no way of avoiding I think, that conclusion. It follows therefore that by paying the fee on or after 29 February causing the Court therefore to issue the appeal on 1 March, that meant that the appeal was not commenced in time. There was no jurisdiction of the Court to extend the period of time.”
Framework Statute

Framework

[21]There is no dispute about section 17 or what it requires. It reads relevantly as follows:
“[Section 17(4A)] An appeal may be brought only if the employer has given a notice of objection under section 16 and the Secretary of State: … (b) has determined the objection by: (i) reducing the penalty under section 16(4)(b) or (ii) taking no action under section 16(4)(d)... …[Section 17(4B)]: An appeal must be brought within the period of 28 days beginning with the relevant date.”
Subsection (4D) goes on to provide:
“Where the appeal is brought under subsection 4A(b), the relevant date is the date specified in the notice informing the employer of the decision for the purposes of section 16(5)(b) as the date on which it is given.”
Section 16(5)(b) imposes the duty on the Respondent to inform the objecting party of his decision. This was an appeal under subsection 4A(b) because the Respondent had taken no action in relation to the penalty.”[22]It is common ground that this is the state of affairs in this case, namely section 17(4A)(b)(ii) applies as a ground of appeal because the respondent under section16(4)(d) took no action in respect of the penalty by way of cancellation, reduction or increase. By taking no action under the subsection, the penalty remained the same. The Appellant’s objection to the issue of a penalty in the first place was not upheld.[23]In the present case, section 17(4A)(b)(ii) applies because the respondent under section16(4)(d) took no action in respect of the penalty by way of cancellation, reduction or increase. By taking no action under the subsection, the penalty remained the same. The Appellant’s objection to the issue of a penalty in the first place was not upheld.[24]Section 17(4B) provides:
“An appeal must be brought within the period of 28 days beginning with the relevant date.”
[25]Section 17 (4D) states:
“Where the appeal is brought under subsection 4A(b), the relevant date is the date specified in the notice informing the employer of the decision for the purposes of section 16(5)(b) as the date on which it is given.”
[26]Section 16(5)(b) imposes a duty on the Respondent to inform the objecting party of his decision.

Rules

[27]CPR Part 52 applies to section 17 appeals. This is because ‘lower court’ is defined in CPR r.52.1(3)(c) to include not only a court or tribunal but also an ‘other person or body from whose decision an appeal is brought’. Appeals from the decision of the Secretary of State to impose a penalty under the 2006 Act are within that definition. By CPR 52.2 the parties must comply with Practice Directions 52A-52E. Included in it is CPR 52B above. CPR 52D applies particularly to statutory and special provision appeals, and by CPR 52D paragraph 3.5 makes clear that there is no source of power for extending time except the relevant statute. This reflects the agreed position between the parties. As the White Book says in 52. 12:
“ Statutory time limits for filing notice of appeal The provisions of Pt 52, including r.52.12, are subject to “any rule, enactment or practice direction which sets out special provisions with regard to any particular category of appeal” (r.52.1(4)). Time limits applicable for statutory appeals, for appeals by way of case stated and for a variety of specific appeals are found in the appropriate places in Practice Direction 52D and Practice Direction 52E. Practitioners should be alert to the fact that, in relation to certain appeals brought under statute, different time limits to those fixed by r.52.12 may apply. Generally, such statutory variations will be reflected in directions in Section 4 of Practice Direction 52D (Provisions about specific appeals); see, e.g. … [and examples are given].”
[28]Paragraph 3.5 of PD 52D explains that where a statute prescribes a period within which an appeal must be filed the appeal court may not extend that period unless the statute provides differently. The statute does not on its face do so. There is however the narrow discretion in the court in order not to defeat the essence of the right to come before the court, pursuant to Article 6 ECHR.

Caselaw

[29]Caselaw which has been advanced before this Court shows the scope of this exceptional statutory reading has been explored particularly in extradition and in the regulatory field with regard to statutory time limits, among other contexts, respectively Pomiechowski v Poland [2012] UKSC 20; [2012] 1 W.L.R. 160, SC, and R. (Adesina) v Nursing & Midwifery Council [2013] EWCA Civ 818; [2013] W.L.R. 3156, CA.[30]The effect of these cases is that the statute in question will be read down to be Human Rights Act compliant so as not to infringe rights arising under Article 6. A discretion to extend time had in those cases been held to arise, but only in exceptional circumstances and it has on occasion been stated, where the appellant has personally done all that he or she could to bring the appeal timeously. The court emphasised this was not a broad power in the Adesina case, where one of the applicants had just left it too late in lodging her statutory regulatory appeal so the court refused to exercise the exceptional discretion.[31]In Pomiechowski, Lord Mance JSC stated (para [39]) that the court has a discretion in exceptional circumstances to extend time for filing and service beyond the period specified in the relevant statute where the statute 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. He stated that the court must have the power in any individual case(a) to determine whether the operation of the time limits would have this effect and, if and to the extent that it would do so,(b) to hear an appeal out of time when a litigant personally has done all he can to bring and notify timeously.[32]In Adesina, the Court of Appeal determined that where the 28-day period prescribed by section 17(4) for bringing an appeal ended on a day on which the court was closed for the whole day, section 17(4) was to be construed as permitting the appellant’s notice to be filed on the next day on which the court office was open. In the circumstances of that case, the employer had done all it could to issue its appeal in time and the court’s error in refusing to accept the notice of appeal constituted exceptional circumstances which justified extending time for appealing (there, a few days).[33]There is a plethora of cases on the extent to which, if at all, the court will countenance an extension to a statutory time limit where none appears in the express words of the statute.[34]The statute in issue here was considered in the case of Yadly Marketing Co Ltd v Secretary of State for the Home Department [2016] EWCA Civ 1143; [2017] 1 W.L.R. 1041. There it was held that in order to issue a notice of appeal for the purpose of the statutory limitation period under s.17(4) where the court office was closed on the last day of the limitation period, the appeal could be filed on the next working day by reference to the case of Pritam Kaur v S Russell & Sons Ltd [1973] Q.B. 336; [1973] 2 W.L.R. 147; [1973] 1 All E.R. 617). This is a matter of statutory construction, Parliament cannot have intended the consequence that the time for the task is shortened by one day. This approach was approved by the Supreme Court in the statutory context of extradition in Mucelli v Government of Albania [2009] 1 WLR 276.[35]Examples in the caselaw of difficulties experienced include where the solicitor turns up and find the office closed all day because it is a Bank holiday. In that case, authority is clear (see the analysis of the cases by Lang J in Home Farm Land Limited v SoS for Levelling Up [2023] EWHC 2566 (Admin) that as stated, where the office is closed for the whole day and it is a dies non, the statutory period will be taken to expire the next day.[36]Lewis J in Calverton Parish Council [2015] EWHC 503 (Admin); [2015] PTSR 1130 emphasised that the Kaur principle applied in that case because the application could not be made unilaterally, the office is part of it, and the principle does not bring uncertainty. It does not require an office to be open until midnight - normal business hours is the implication. That analysis is not relevant here save that it reflects that in this context any exception must not import unworkable uncertainty.[37]As cited in Home Farm, the analysis of the action of “bringing” a claim or an appeal was undertaken in an earlier case of Barnes v St Helens Metropolitan Borough Council (Practice Note) [2007] 1 WLR 879 in which the Court considered the predecessor of [6.1] of PD 7A. The case was there discussing the date in respect of a claim rather than an appeal, and highlighted the distinction between bringing a claim and it being issued. The same verb appears in the relevant Rule.[38]In Barnes, Tuckey LJ said the following in a similar statutory context about the commencement of proceedings against a limitation period:
“16. I start simply by looking at the words used in the statute and the Rules. I approach them by expecting to find the expiry of a limitation period fixed by reference to something which the claimant has to do, rather than something which someone else such as the court has to do. The time at which a claimant “brings” his claim form to the court with a request that it be issued is something he has to do; the time at which his request is complied with is not because it is done by the court and is something over which he has no real control. Put another way one act is unilateral and the other is transactional. I do not agree…… that in the context the verb “to bring” has the same meaning as the verb “to start”…..a claim is brought when the claimant's request for the issue of a claim form (together with the court fee) is delivered to the court office…” (my emphasis) 17. This construction accords with the approach taken in the pre- CPR cases. The claimant is given the full period of limitation in which to bring the claim and does not take the risk that the court will fail to process it in time...”
[39]In Atha v Liddle [2018] EWHC 1751 (QB), Turner J cited Barnes noting that there was there no dispute as to the correct court fee, nor did he there need to ask what would happen if the wrong fee had been tendered, but he did reflect there were earlier cases where the wrong fee had been submitted, and the court had previously held that a claim had not been properly “brought” when an incorrect fee was tendered.[40]The Kaur exception has been litigated in other contexts, but only successfully where the closure of the office was a whole day, and because it was a dies non i.e. - not part of the judicial calendar. There is no dispute in this court, but that the two exceptions to an absolute rule are found first in the Kaur exception, and second in the Article 6 exception.[41]Mr Gazzain relies particularly on the case of Lars Stuewe v Health and Care Professions Council [2022] EWCA Civ 1605. In that case, as SGL set out succinctly in their skeleton, the Court reviewed the authorities and made clear that care needed to be taken with the “additional qualification” i.e. the Pomiechowski factor (adopted in Adesina,) that a litigant would need to do all that they personally could to bring the appeal timeously. It was wrong to elevate that factor to the status of a rule; it was an illustration. Lord Mance in Pomiechowski was giving an example only of where an exception could be found.[42]The Court also listed circumstances that although unfortunate were not within the exception: ill health and stress and attending court office with insufficient funds to pay the court fee (Pinto v Nursing and Midwifery Council [2014] EWHC 403 (Admin)); three-day delay arising out of an inability to find funds to pay the court fee (Nursing and Midwifery Council v Daniels [2015] EWCA Civ 225); oneworking day late in filing, having attended on the final day of the time limit without correct documentation (Darfoor v General Dental Council [2016] EWHC 2715 (Admin)).[43]SGL also relied in some detail on Atha v Liddle in which it was alleged the Claimant had deliberately understated and then paid an issue fee accompanying a claim (not a statutory appeal case, rather a limitation point). It was argued there that the claim should be regarded as not properly brought and therefore out of time.[44]The judge concluded the solicitor had not come to a genuine concluded view the claim was worth less than £25,000 which was the claim value for which she paid the fee. Dishonesty was not alleged or found by the judge, rather it was a serious misjudgement of the “strategic leeway afforded to her under the rules” (para [15]). He judged a strike out for abuse would be disproportionate, but went on to consider the underlying issue of when the claim had been “brought” for the purposes of section 2 of the Limitation Act 1980 and claims in tort. There, the central question was whether the claim was brought when the claim form was received, or when it was issued.[45]Turner J discussed but declined to follow the “you must have done all that you could do” line, i.e. the Pomiechowski factor. Turner J discusses other first instance cases where the scope of the principles was in issue, in particular as to where the edge lay in terms of a case where a solicitor makes an absent-minded mistake that causes no prejudice to the other side who receives an unexpected benefit. He observes that some of the more hard-edged decisions made in the area may have strayed beyond the true scope of the Court of Appeal guidance. SGL relies on this authority as an example of the evolving approach of the courts to the exceptional jurisdiction.[46]Turner J referred to the “threshold of procedural perfection” that logically followed from applying a Pomiechowski factor. The judge examined other cases where he reflected that an error in the court office might cause a litigant to lose their right to litigate. As I understand it, Atha v Liddle is here relied upon together with the later case of Lars Stuewe, in support of the proposition, not before the judge below, that the scope of the exceptional case is not circumscribed by the requirement to have shown a type of procedural perfection by doing everything you could have done, and that the law recognises this when considering the scope of exceptionality.

Consideration

[47]Turning to the present case, necessarily the first task is to construe the legislation and determine what the obligations are to which it gives rise. Could it be said first that what was in fact done on 26th was what was required under statute? The Appellant drew attention below to the process under the CPR 3.7B for obtaining payment when a cheque is tendered to the court in payment but dishonoured on presentation. A notice is served on a paying party as to when payment must be made and if it is not received, (in the case of a claim) it is struck out. In my view this is not relevant to this case save that it reflects the fact that in law a cheque is tendered as payment which, if dishonoured, is conditional and becomes void retrospectively (DPP v Turner [1974] A.C. 357). There is a process whereby the Court notifies the fact of dishonouring – it had been suggested that was relevant here. In my judgement it is not. This is not a case where proper payment is accepted which is good on its face but later is dishonoured.[48]The statutory wording in this case requires that an appeal is “brought” which is in common with several other statutes.

The judge below asked and answered the question thus:

“…when in this case was the appeal commenced? The appeal was brought in my view when the appropriate fee was paid. This follows from Practice Direction 52B at paragraph 4(1) which says: “The appeal is brought by filing the appellant’s notice, accompanied by the appropriate fee or an application for a dispensation.”
[49]As has been observed elsewhere the statute does not identify the means by which or manner in which an appeal must be ‘brought’ for the purposes of section 17(4B). In particular, the statute itself specifies no particular document(s) to be provided, no fee to be paid or any date by which it must be paid. Nor does the statute expressly make the bringing of an appeal conditional upon prior or simultaneous payment of a fee. It is necessary to look to the CPR for the mechanism.[50]In my judgement, the caselaw suggests that in order properly to bring the appeal the correct fee must be tendered with the documents submitted to the court office. That in my judgement imports the notion of a cheque naming the correct payee. So the rhetorical question as to whether the proceedings were “brought” within the meaning of the statute and rules was here, no – because of the (I accept, arguably trivial) error of the “my” added to HMCTS, which had severe consequences.[51]The issue here, of course, is the fact, as I (and Ritchie J ) read the papers, that the court itself was the cause of the operative error: it refused to accept the correct payment reasonably proffered by card, and then wrongly agreed the cheque as drawn was adequate replacement payment when it was not. The papers were all properly served – by several means. The documents were correct, effective payment of the fee was produced. It was not the action of the solicitor that caused the delay occasioned by the inaccurate statement of the payee on the cheque. In these circumstances the draughtsman did not in my judgement intend that an appellant should be shut out from an appeal and without recourse.

Conclusions

[52]This appeal must succeed. I do not determine any other application other than that the appeal may proceed.[53]I accept as submitted it is a case where the discretion will apply. It is distinct on its facts from the cases (mostly regulatory) where the court has pointed to failures by the litigant and declined to accede to an argument that it would be an infringement of their rights to shut them out from appeal. In the present case it would be wrong and disproportionate to do so.[54]I accept as submitted that the tenor of the caselaw suggests it is necessary for a careful, individual assessment of the facts. It is not necessary to impose a layer of individual requirements a litigant must fulfil to succeed. It is not, in my judgement, the case either, that the appellant must show themselves to be entirely blameless - although in the present case I do so hold.[55]The Court of Appeal in Lars Stuewe propounds a more nuanced approach. I have concluded that the court thwarted the litigant’s proper and reasonable attempts to bring the appeal in time. There was no error or failing on the Appellant’s solicitors’ side. However, I also accept the submission that caselaw shows it is not necessary to demonstrate a person did absolutely everything required of them as an extra test in determining whether the discretion extends in a particular case.