Kigen & Anor, R (on the application of) v Secretary of State for the Home Department

This is an appeal against the order of Upper Tribunal Judge Freeman dated 12^th February 2015 dismissing the appellants’ application for an extension of time in which to renew their application for permission to apply for an order under section 15 of the Tribunals, Courts and Enforcement Act 2007 (commonly described as a claim for judicial review).

The appellants, Mr. Frank Kigen and his wife, Mrs. Janet Cheruiyot, are seeking to establish that they are entitled to be granted leave to remain in the United Kingdom by reason of Mr. Kigen’s descent from his maternal grandfather. It is unnecessary for the purposes of this appeal to recite the course of the proceedings which have led to the present appeal. Suffice it to say that the appellants are seeking to challenge by way of judicial review the latest decision of the Secretary of State rejecting their claim.

The Secretary of State’s decision was conveyed to the appellants in a letter dated 30^th May 2014. In the ordinary way time for issuing proceedings for judicial review would have expired on 30^th August, but that was a Saturday and it is therefore accepted that in this case time expired on Monday, 1^st September 2014. The appellants issued their proceedings on Tuesday, 2^nd September, one day late.

The necessary application for permission was considered by Upper Tribunal Judge Kekić on the papers. She noted that the claim had been commenced out of time and declined to admit it because she did not think that a satisfactory explanation had been given for the delay. There are two formal documents recording her decision, one dated 3^rd October 2014 and one dated 3^rd November 2014, in identical terms. No explanation for that strange state of affairs has been given. Judge Freeman later recorded that the decision had been sent to the appellants’ solicitors on 3^rd October 2014, but that they said they had not received it until 5^th November 2014. It seems more likely, therefore, that the second document was sent out rather than the first, but in the end nothing turns on that question. Like the judge, I am content to proceed on the basis that the decision in question was communicated to the solicitors on 5^th November 2014.

Any request to have the application for permission to be reconsidered at an oral hearing should have been lodged with the Upper Tribunal within 9 days after the notice of the decision to refuse permission had been sent to the appellants’ solicitor. In this case, however, the request was not lodged until 27^th November 2014. In it the appellants asked for the necessary extension of time. That application was supported by a statement from the solicitor acting on their behalf, who said that an application to amend the scope of their legal aid certificate had been lodged with the Legal Aid Agency on 6^th November 2014. Unfortunately, it was not until 25^th November 2014 that the Legal Aid Agency decided to grant funding. Counsel was instructed on 25^th November and the request to have the application to be reconsidered was lodged with the Upper Tribunal on 27^th November 2014.

The case came back before Judge Freeman on 6^th February 2015. The first matter he had to deal with was the application for an extension of time for lodging the request for reconsideration. Although the point was not covered in the solicitors’ statements, Judge Freeman was content to accept that time had not started to run until 5^th November 2015, when a letter informing them that permission had been refused had reached them. On that basis the appellants were out of time by thirteen days and he declined to grant an extension of time. In an extempore decision he referred to earlier cases in which delays caused by waiting for a decision from the Legal Aid authorities had been treated as providing a good reason for extensions of time and to the decision of this court in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, [2015] 1 W.L.R. 2472, in which the court considered delay in public law cases and proceedings conducted by litigants in person in the context of the decisions in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 W.L.R. 795 and Denton v T. H. White Ltd [2014] EWCA Civ 906, [2014] 1 W.L.R. 3926. The judge granted permission to appeal to give this court the opportunity of considering whether delay awaiting a decision of the Legal Aid Agency still provides a good reason for failing to comply with time limits imposed by the CPR or orders of the court. It was not suggested that a different approach should be taken to failures to comply with the rules governing proceedings in the Upper Tribunal.

On behalf of the appellants Miss Radford submitted that the authorities supported the conclusion that delay waiting for a decision of the Legal Aid Agency should not be held against a person, at any rate so far as concerns public law proceedings in which fundamental rights are engaged. She also submitted that in any event the delay in this case was neither serious nor significant and that the appellants’ solicitors had sought to obtain an extension of time before the time for lodging a request for reconsideration had expired. She also argued that the approach which applies to litigants in person generally should not be extended to those who are eligible for legal aid, and particularly not to those who eventually obtain it, because the very fact that they have been granted legal aid shows that it would be unreasonable to expect them to conduct the case as litigants in person. Finally, she submitted that Judge Freeman had been wrong in thinking that the appellants’ case had been considered on its merits and should not therefore have taken that into account in exercising his discretion.

Mr. Hansen for the Secretary of State accepted that in former times the courts had been willing in public law cases to accept that delay awaiting a response from the Legal Aid authorities should not be held against litigants, although the same did not necessarily hold good in private law cases. He submitted, however, that in recent times the courts had adopted an increasingly strict approach to compliance with time limits, as exemplified in the leading decisions of Mitchell and Denton, as well as the decision in Hysaj. He also submitted that the court was entitled to take into account as part of the background the fact that the proceedings had been issued out of time, for which no satisfactory explanation had been offered.

We had before us two rather different versions of Judge Freeman’s reasons for his decision. The first takes the form of a transcript of the extempore decision he gave at the conclusion of the hearing on 6^th February 2015. It states that it has been approved by the judge, so I assume that it was submitted to him in draft for his approval and that it contains any corrections he thought it appropriate to make. One might have thought, therefore, that it contained the judge’s definitive reasons for his decision. On 12^th February 2015, however, a formal decision notice was given by the Upper Tribunal under rule 40 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“the Upper Tribunal Rules”) refusing an extension of time for applying for the reconsideration of the application for permission to apply for judicial review, which set out at some length the judge’s reasons for his decision. The reasons given in that order are broadly the same as those given in the earlier judgment, but are expressed in different terms and in one respect significantly so. It is confusing at best and potentially a source of dispute to have two differing records of the judge’s reasons. Rule 40 of the Upper Tribunal Rules requires the tribunal to provide each party with a formal decision notice, but in a case where the judge has given his reasons extempore and in a form which he has since approved, it might be better if those reasons were to be incorporated into the formal decision notice.

Since both Mr. Hansen and Miss Radford sought to draw some support from the earlier authorities, it is convenient to begin with them. In Baker v Bowketts Cakes Ltd [1966] 1 W.L.R. 861, a case involving a claim for personal injury in which the writ had not been served within its initial period of validity, this court held that delays in obtaining legal aid had to be ignored when deciding whether there was good reason to extend the validity of the writ. In R v Stratford-upon-Avon District Council ex parte Jackson [1985] 1 W.L.R. 861, however, that decision, which involved private law proceedings, was said to have no relevance to claims for judicial review, which involve public law proceedings. Ackner L.J., giving the judgment of the court said:

“ . . . it is a perfectly legitimate excuse for delay to be able to say that the delay is entirely due to the fact that it takes a certain time for a certificate to be obtained from the legal aid authorities and that, despite all proper endeavours by an applicant, and those advising her, to obtain a legal aid certificate with the utmost urgency, there has been some difficulty about obtaining it through no fault at all of the applicant.”

In Waddon v Whitecroft Scovell Ltd [1988] 1 W.L.R. 309 the House of Lords was concerned with another case in which the plaintiff sought to extend the validity of the writ which had not been served as a result of delay in obtaining legal aid. Lord Brandon, with whom the other members of the House agreed, rejected the suggestion that there was a general rule of law that delays caused by the operation of the legal aid system could never be taken into account. He thought that where a delay of that kind had occurred it would be unrealistic to disregard its effect. As I read his speech, he regarded it as a factor that might be taken into account in an appropriate case.

Since 1988, however, much has changed, particularly in the fields of civil procedure and legal aid. The Civil Procedure Rules were introduced in 1998 partly in response to concerns that litigation had become subject to unacceptable delays. There was an increasing recognition that delay in the conduct of proceedings was damaging to the interests of the parties, wasteful of court resources and ought not to be condoned. More recently, concern over the rising level of costs in civil proceedings has led the courts to become far less tolerant of delay and inefficiency and more astute to ensure that parties comply with time limits imposed by the rules and orders of the court. At the same time there has been a significant reduction in the availability of legal aid, with the result that many of those who might in the past have expected to obtain legal aid are now forced to act in person. The increase in the number of litigants in person has imposed additional burdens on the courts, since, although the Civil Procedure Rules are written as far as possible in simple language, many litigants find it difficult to understand and apply them. This has inevitably led to an increasing number of applications for extensions of time, often supported, expressly or by implication, by a plea that the litigant did not understand the rules.

The need to place a greater degree of emphasis on compliance with the rules has found its clearest expression in the cases of Mitchell and Denton, which underpin the principles which govern the court’s approach to applications for extensions of time generally. In Hysaj the court reviewed the principles to be derived from those two authorities and sought to give some guidance on the way in which they should be applied when the court is considering an application for an extension of time for filing a notice of appeal. In doing so the court considered a number of factors that it is frequently asked to take into account on such applications, including the existence of a public law claim, shortage of funds and the fact that the appellant is a litigant in person.

For the reasons set out in paragraphs 40 - 42 of my judgment in Hysaj, I do not think that public law proceedings call for an approach substantially different from that which the court would ordinarily take in relation to private law civil proceedings. Part 54 of the CPR, which governs the procedure applicable to claims for judicial review, has been drafted with the particular nature of such proceedings well in mind. It has been said on many occasions that it is particularly important for such proceedings to be started promptly and pursued with diligence. There is no reason in principle, therefore, why the court should take a more relaxed approach to compliance with the rules than it would in private law proceedings; if anything, there are grounds for adopting an even stricter approach.

Shortage of funds was another matter to which the court referred in Hysaj. In paragraph 43 of my judgment I expressed the view that an inability to instruct solicitors because of a shortage of funds did not provide a good reason for delay. It is an unfortunate fact that many litigants cannot afford to instruct legal representatives and are forced to act on their own behalf, but, for the reasons I gave in paragraphs 44 - 45 of my judgment, that cannot on its own provide a good reason for failing to comply with the rules. If it were otherwise, the administration of justice would cease to function efficiently as more and more litigants in person were allowed to disregard the rules by which represented parties are bound.

The present case presents a combination of features that the court considered in Hysaj. First, it involves a public law claim, but not one, as far as I can see, that raises any question of wider importance. There is, therefore, no strong public interest in granting an extension of time in order to enable the point in issue to be determined. In those circumstances the court’s approach should, in my view, be the same as that which it would adopt in relation to a private law claim. Secondly, this is a case in which the appellants do not have the means to instruct solicitors to conduct the proceedings on their behalf. However, as I have explained, shortage of funds does not of itself provide a good explanation for the delay, nor does it constitute grounds for extending time.

The question then arises whether the fact that the appellants had applied for legal aid and were awaiting a decision from the Legal Aid Agency is a factor which should lead to a different conclusion. This question did not arise in Hysaj, but, consistently with the approach adopted in that case, this court in ZP (South Africa) v Secretary of State for the Home Department [2015] EWCA Civ 1273 held that it should not normally be regarded as providing a good reason for delay. A litigant who has applied for legal aid is in essentially the same position as any litigant who is unable to afford legal representation. As such, he has an unenviable choice between representing himself and abandoning his claim. If he is granted legal aid, he will, of course, be in the same position as any other represented party, but unless and until he is and is able to instruct a solicitor, he retains the right to act on his own behalf.

The decision of this court in ex parte Jackson was based on the assumption that a distinction can be drawn between private law and public law proceedings. The court expressed the view that in judicial review proceedings there is no true lis inter partes, thereby suggesting that the issues raised in public law cases are necessarily of public interest. In my view, that may or may not be the case; it will depend on the nature of the issues to which the proceedings give rise. There has been a very significant increase in the number of claims for judicial review, many of which are in substance little more than private proceedings between the claimant and the relevant public body rather than proceedings which raise issues of importance to the public at large. Moreover, the change in the climate of litigation which has come about since that case was decided makes it no longer appropriate to treat delay in obtaining legal aid as a complete answer to a failure to comply with procedural requirements. It may still be a factor that can be taken into account (see Sacker v H.M. Coroner for West Yorkshire [2003] EWCA Civ 217), but no more. To hold otherwise would place those who apply for and obtain legal aid in a better position than those who, through no fault of their own, are forced to represent themselves. For similar reasons I am not impressed by Miss Radford’s submission that the fact that the appellants were granted legal aid shows that they could not reasonably be expected to act on their own behalf. Whether that was so or not depends to a large extent on the steps they had to take.

At this point it is convenient to digress for a moment to deal with Miss Radford’s submission that an application was made to the Upper Tribunal for an extension of time before the time allowed for lodging the request for reconsideration had expired and that therefore a more lenient approach should be taken: see Robert v Momentum Services Ltd [2003] 1 W.L.R. 1577. In support of that submission she relied on letters dated 10^th and 19^th November 2014 from the appellants’ solicitors to the Upper Tribunal informing it that they intended to request reconsideration of their application for permission and that the delay had been caused by difficulties in obtaining legal aid. I accept that the court’s approach to an application for an extension made before time has expired is different from that which it takes to an application made after the event, since in the former case there is nothing in the nature of a sanction against which relief can be sought. However, I am quite unable to accept that the letters on which Miss Radford relied did in fact amount to an application for an extension of time. They simply informed the tribunal of what was in the appellants’ minds. There was no reference to lodging a request and certainly nothing to suggest that the appellants were seeking an extension of time in which to do so. This is not a case, therefore, in which the appellants can bring themselves within the scope of the decision in Robert v Momentum Services.

In my view lodging a request to have an application for permission to apply for judicial review reconsidered is analogous to filing a notice of appeal, since in both cases a failure to do so will result in the termination of the proceedings. Accordingly, I think that similar principles apply to applications for any necessary extension of time and that, for the reasons I have given, in cases of this kind the court should adopt the three-stage approach set out in Denton, applying the guidance given by this court in Hysaj. In the present case the appellants were allowed the usual nine days in which to lodge a request to have their application for permission reconsidered. The request is made by lodging a standard form which is sent to the applicant with the order from the Upper Tribunal dismissing the application on the papers. If it is dealt with promptly it requires no more than a broad statement of the grounds for renewing the application, as is demonstrated by the present case, in which, although settled by counsel, the grounds amounted to no more than a reference to the grounds accompanying the judicial review claim form. Since the appellants had been represented by solicitors in relation to the original application, it should not have been difficult for them to complete the request and return it within time with little or no further assistance. The required fee must ordinarily accompany the request, but even that is unnecessary if an application for fee remission is lodged with it.

In the present case the order refusing permission was sent to the appellants’ solicitors on 5^th November 2014. On 6^th November 2014 they lodged an application with the Legal Aid Agency for an extension of the certificate. On Monday 10^th November 2014 the solicitors were informed that the documents were incomplete. The application was submitted again the same day. On 12^th November 2014 the Legal Aid Agency refused the application and invited the appellants to show cause why the certificate should not be discharged. The solicitors responded and pressed the Agency for an early reply. A decision to extend the appellants’ certificate was made on 25^th November 2014 and the request was lodged on 27^th November 2014. By then it was 13 days out of time.

Miss Radford submitted that the judge’s decision to refuse an extension of time was wrong because he failed properly to apply the principles to be derived from Denton and Hysaj and because he was significantly influenced by his understanding that the merits of the appellants’ case had been examined and rejected by an independent judicial authority, whose decision had been reconsidered twice on applications for permission to appeal. That, she submitted, was not in fact the case and the judge’s misunderstanding had adversely affected his identification of the factors that he had to take into account.

In the course of giving his formal reasons the judge referred to the merits of the appellant’s claim in the context of his consideration of the decision in Hysaj. He did so in these terms:

“Paragraph 46 [of the judgment in Hysaj] discourages detailed argument on the merits of the case on applications for extension of time. It is enough to say in this case that the merits have been examined by an independent judicial authority, and that decision reconsidered twice on applications for permission to appeal, as long ago as 2011.”

The judge was there referring to previous proceedings by the appellants challenging the Secretary of State’s refusal to allow them to settle in this country on the grounds that one of the documents on which they had relied in support of their claim was a forgery. That decision had been the subject of an unsuccessful appeal to the First-tier Tribunal in March 2011, following which permission to appeal was refused both by the First-tier Tribunal and by the Upper Tribunal. The present proceedings, on the other hand, arise out of a subsequent application based on fresh evidence, which the appellants say the Secretary of State has yet to consider on its merits. Insofar as the judge thought that the substance of the claim had already been considered and rejected, I think he was wrong, but in any event, he was in no position to assess the merits of the claim and had no reason to think that they were so poor as to detract from the force of the application. In his extempore reasons the judge also referred to paragraph 46 of the judgment in Hysaj and said that the fact that the merits had already been fully investigated had played a significant part in his decision. Although he did not say as much in his formal reasons, viewing the matter in the round, one cannot but be left with the impression that his erroneous understanding of the previous course of the proceedings significantly influenced his decision. In those circumstances the judge’s exercise of his discretion was flawed and must be set aside. It therefore falls to this court to exercise the discretion afresh.

The first question for consideration, applying the principles to be derived from Denton and Hysaj, is whether the delay in this case was serious and significant. In the context of the short period of nine days allowed for lodging the request for reconsideration a delay of thirteen days cannot be regarded as trivial or insignificant. Delay of any kind in proceedings for judicial review is to be avoided as far as possible and the time allowed for applying for the reconsideration of an application for permission is kept deliberately short. In my view, although the delay was not of such a length as to affect greatly the progress of the proceedings, it called for a satisfactory explanation. The explanation provided, namely, that the appellants were awaiting the outcome of their application for legal aid, is not one that I think can be regarded as satisfactory in the circumstances of this case. The appellants’ solicitors were alive to the time limit, but appear to have taken no steps to ensure that the relevant form was lodged or to advise the appellants that they should lodge it themselves in order to preserve the position.

That brings me to the overall circumstances of the case. It is difficult to criticise the appellants themselves, who no doubt followed the advice given by their solicitors, and it is fair to say that the solicitors acted with reasonable expedition in their dealings with the Legal Aid Agency. Their letters to the Upper Tribunal of 10^th and 19^th November 2014 show that they were aware of the passage of time and of the need for expedition, but they considered themselves to be in the hands of the legal aid authorities. It is now well recognised that there is a wider public interest in ensuring that litigants comply with the time limits laid down in the rules, but the court must also consider whether to grant or refuse relief would have a disproportionate effect on one or other party. This is not a case in which the Secretary of State can point to any particular prejudice she will suffer as a result of a period of nine days’ delay, whereas the appellants will suffer a degree of prejudice if they are prevented from having their application for permission to apply for judicial review reconsidered at an oral hearing.

There remains the question of delay in commencing the proceedings for judicial review, on which Mr. Hansen relied as forming part of the overall circumstances which the court should take into account when considering whether to grant the extension of time now being sought. The appellants issued proceedings one day after the three month period prescribed by rule 28(2) of the Upper Tribunal Rules had expired, but the rules require a claim for judicial review to be issued promptly and Mr. Hansen submitted that there was no good reason in this case for leaving things to the last minute. Judge Kekić obviously took a similar view.

This is not an appeal against Judge Kekić’s decision, however, which will fall to be reconsidered at an oral hearing, if this appeal is allowed. Apart, perhaps, from any delay that may have been attributable to awaiting a decision from the Legal Aid Agency, there is nothing in the history of the proceedings or in the circumstances surrounding the delay in November 2014 which suggests that the latter was more culpable than might otherwise appear to be the case. In those circumstances, I think the less said at this stage about the earlier delay the better.

It may be that, in the light of the older authorities to which I have referred, solicitors in general may have been under the impression that any delay awaiting a decision by the Legal Aid Agency would simply be ignored if an extension of time were required as a result. That is not the case and it is to be hoped that any such misunderstanding will have been dispelled as a result of the decision in this case. Those acting for parties in the position of these appellants will in future need to take steps either to lodge the necessary form promptly on behalf of their clients or to advise them of the need to do so on their own behalf. Failure to lodge the necessary request within the prescribed time may in future result in an extension of time being refused. However, given the degree of uncertainty that surrounded the matter, I am persuaded that to refuse an extension of time in this case would be to impose on these appellants greater prejudice than is justified by the delay.

For these reasons I would, exceptionally, allow the appeal and grant a sufficient extension of time to enable the appellants to lodge a request to have their application for permission to apply for judicial review reconsidered at an oral hearing.

I agree with the judgment of Lord Justice Moore-Bick.

For the reasons there given, the discretion as to whether or not to grant an extension of time for the application for reconsideration falls to be exercised afresh by this court. I have nevertheless hesitated as to whether the discretion should be exercised in favour of the appellants. In the event, I have been persuaded that it should be. This is so in circumstances where the appellants’ solicitors had at least written to the Upper Tribunal in the interim seeking to explain the delay (even if there was no application for an extension of time) and where there may well have been a perception, based on the older authorities, that awaiting a decision of the Legal Aid Agency would in itself provide a sufficient justification for the delay. For the future, however, practitioners and parties cannot proceed having any such expectation. On the contrary, they should proceed in the expectation that any explanation based on the proposition that the delay was “only” for a few days, whether or not coupled with an explanation that a decision from the Legal Aid Agency was awaited, will not be received with indulgence by the tribunal or court. It is most important that the requirements of the Tribunal Procedure (Upper Tribunal) Rules 2008 as to time limits - in the present case, the requirements of rule 30(5) - are observed.

I agree with both judgments.