Arunthavaraja v Administrative Court Office Paphos District Court, Cyprus (Interested Party)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RICHARDS,MR JUSTICE MADDISON |
| Judgment Date | 09 July 2009 |
| Neutral Citation | [2009] EWHC 1891 (Admin) |
| Date | 09 July 2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/7600/2008 |
[2009] EWHC 1891 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Richards
Mr Justice Maddison
CO/7600/2008
Mr M Collis (instructed by Rustem Guardian) appeared on behalf of the Claimant
Mr Martin Chamberlain (instructed by Treasury Solicitors) appeared on behalf of the Defendant
Miss Amelia Nice (instructed by CPS) appeared on behalf of the interested Party
: The claimant was arrested in this country pursuant to a European Arrest Warrant issued by the Paphos District Court in Cyprus. He was brought before City of Westminster Magistrates' Court where District Judge Tubbs made an order pursuant to section 21(3) of the Extradition Act 2003 for his extradition. The order was made on Monday 28 July 2008. By section 26(1) and (4) of the 2003 Act, there is a right of appeal to the High Court against such an order, but notice of appeal must be given in accordance with rules of court before the end of the permitted period, which is seven days starting with the day on which the order was made. On Monday 4 August 2008, the claimant's solicitors attempted to file a notice of appeal at the Administrative Court Office in the Royal Courts of Justice. The Office refused to issue the notice, on the basis that it was out of time and the court lacked jurisdiction to entertain it. By this application the claimant challenges that refusal. The matter is listed as an application for permission, with the substantive judicial review application to follow immediately if permission is granted. The extradition order itself has been stayed pending the determination of these proceedings.
On behalf of the Administrative Court Office, Mr Chamberlain has taken the point, which in my view is well-founded, that judicial review is a wholly inappropriate means of challenging a decision of this kind. In his written submissions he starts by observing that it is the long-established practice of the Office to refuse to issue a notice of appeal or other originating application filed outside a non-extendable statutory time limit. The practice is said to serve the important objective of ensuring that the court lists do not become clogged up with appeals and applications which the court lacks jurisdiction to entertain. What we are told about the practice accords with my own understanding of the position, and I regard the practice itself as perfectly sound. If a notice or application is considered to have been filed out of time, and in consequence the court is considered to lack jurisdiction to entertain it, the point is best taken at the outset. The question is how to resolve a dispute should one arise at that early stage.
The staff of the Administrative Court Office are court officers as defined in CPR rule 2.3(1). Where a step is to be taken by a court officer, he has the power under rule 3.2 to consult a judge before taking that step, and the step may be taken by a judge instead of the court officer. If therefore a member of staff indicates that he or she is minded not to issue a notice of appeal, it is open to the party concerned to request that the matter be referred to a judge under that rule. If the matter is so referred, a judge of the court can take the relevant decision.
Moreover, decisions made by officers of the High Court are subject to the supervision of the judges of that court in the exercise of the court's inherent jurisdiction to control its own processes. Thus, in R v Taxing Officer, ex parte Bee-Line Roadways International Limited, The Times, 11 February 1982, Woolf J (as he then was) refused to entertain an application for judicial review of a decision of a Supreme Court Taxing Master, but held there to be “an inherent power in the court to control its own proceedings conducted by officials of the court, such as taxing masters, as delegates of the judges”. In relation to the issue of notice of appeal, I doubt whether the staff of the office can be said to be acting as delegates of judges in the sense envisaged by Woolf J in that passage, but I see no reason why the inherent jurisdiction of the court should not extend to control of such activities.
If, therefore, a member of the Administrative Court Office staff declines to refer to a judge under rule 3.2 a disputed question concerning issue of a notice of appeal, it is open to the party concerned to issue an application notice requesting the court to direct that the notice of appeal be issued. Such an application is made not under the rules governing judicial review, but under the court's inherent jurisdiction. An application of that kind can be made ex parte. If it is to be made on notice or if a judge directs that there be a hearing on notice, then the appropriate respondent, as it seems to me, will be the other party or parties to the underlying proceedings. In an extradition case such as the present, that will generally be the requesting state or authority, or the CPS as the representative of that state or authority. In my judgment, the Administrative Court Office should not be a respondent to the application and no representation is required on its behalf; nor should any further participation by the Office be required.
The approach I have indicated is in substance that which was adopted in Amoako [2006] EWHC 1572 (Admin), where Ouseley J heard and determined an application challenging the rejection by the Administrative Court Office of a notice of appeal in extradition proceedings on the ground that the notice was out of time. I note that the case in the transcript that we have was given a title appropriate to judicial review proceedings, namely R (on the application of Amoako) v DPP. I consider that to have been technically incorrect, though nothing turns on it. It appears to have been an ex parte application without a respondent. In a case of that sort, as I have indicated, if a respondent is called for, then the DPP or the CPS, not the Administrative Court Office, would be the appropriate respondent. The case of Amoako also shows how speedily a dispute of this kind can be resolved. It appears that the matter was dealt with by the judge on the day of attempted filing.
For those reasons, I would refuse permission to apply for judicial review of the decision of the Administrative Court Office. Equally, however, since we are seized of the underlying issue, it is open to us, as judges of the court and in the exercise of the court's inherent jurisdiction, to determine whether a notice of appeal should have been issued and, if so, whether it is appropriate to direct the issue of the notice. Although the wrong procedure has been used by the claimant, it can readily be treated as an application under the inherent jurisdiction, and in practice Mr Collis, on behalf of the claimant, acknowledging the force of the submissions made by Mr Chamberlain, did not seek to press his arguments in support of judicial review but was content with the indication by the court that it would be prepared to consider the substantive issue under its inherent jurisdiction.
I therefore turn to the substance of the dispute before us. As already stated, the statute requires notice of appeal to be given in accordance with rules of court before the end of the period of seven days starting with the day on which the district judge's order was made. The relevant provisions of the CPR are to be found in paragraph 22.6A of the Part 52 Practice Direction, which provides:
“(1) In this paragraph, 'the Act' means the Extradition Act 2003.
(2) Appeals to the High Court under the Act must be brought in the Administrative Court of the Queen's Bench Division.
(3) Where an appeal is brought under section 26 or 28 of the Act –
(a) the appellant's notice must be filed and served before the expiry of 7 days, starting with the day on which the order is made;
(b) the appellant must endorse the appellant's notice with the date of the person's arrest;
(c) the High Court must begin to hear the substantive appeal within 40 days of the person's arrest; and
(d) the appellant must serve a copy of the appellant's notice on the Crown Prosecution Service, if they are not a party to the appeal, in addition to the persons to be served under rule 52.4(3) and in accordance with that rule.”
In refusing to issue the claimant's notice of appeal when his solicitors filed it on 4 August 2008, the Administrative Court Office acted in accordance with the law as it was understood at the time. There were several Divisional Court...
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