Sikander Grocers Ltd v Secretary of State for the Home Department

There is no dispute about section 17 or what it requires. It reads relevantly as follows:

Subsection (4D) goes on to provide:

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.

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.

Section 17(4B) provides:

Section 17 (4D) states:

Section 16(5)(b) imposes a duty on the Respondent to inform the objecting party of his decision.

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:

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 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.

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.

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.

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).

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.

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.

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.

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.

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.

In Barnes, Tuckey LJ said the following in a similar statutory context about the commencement of proceedings against a limitation period:

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.

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.

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.

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)).

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.

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.

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.

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.

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.

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:

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.

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.

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.

This appeal must succeed. I do not determine any other application other than that the appeal may proceed.

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.

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.

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.