Behzad Poorsalehy v London Borough of Wandsworth
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Jay |
| Judgment Date | 07 November 2013 |
| Neutral Citation | [2013] EWHC 3687 (QB) |
| Docket Number | No. QB/2012/04S2 |
| Court | Queen's Bench Division |
| Date | 07 November 2013 |
[2013] EWHC 3687 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Mr. Justice Jay
No. QB/2012/04S2
This is an appeal brought with the permission of Mrs. Justice Sharp (as she then was) dated 18 th June 2013 against a decision given at the Wandsworth County Court by His Honour Judge Welchman on 1 st August 2013 striking out the appellant's notice of appeal on the ground that it was out of time and that no good reason for the delay in applying for permission had been given.
The facts in a nutshell are these. The appellant applied to the respondent Local Authority for homelessness assistance under Part 7 of the Housing Act 1986. This was refused and an adverse review decision was notified on 9 th March 2012. The 21 day time limit for appealing expired on 30 th March 2012. On that day the appellant instructed solicitors to act for him and a notice of appeal was prepared in haste and filed out of time on the next working day, which was 2 nd April 2012. The notice failed to contain an application for an extension of time.
By letter dated 18 th April 2012 Messrs. Sharpe Pritchard, acting for the Local Authority, warned the appellant's solicitors that they would be taking the time point in the skeleton argument (see p.79 of the bundle). The appellant's skeleton argument was filed on 16 th May. It acknowledged that an extension of time was required and had not been made. The skeleton argument stated that the appellant sought permission to extend time. That said, no application for an extension was made at that stage.
The Local Authority's skeleton argument was filed on 29 th May 2012. It stated that the appeal was out of time, that no formal application for an extension had been made, and that no evidence explaining the delay had been provided.
On 27 th July 2012 those then representing the appellant made a formal application to extend time (see p.67 of the bundle). This application was supported by a witness statement from the appellant dealing with the period before 2 nd April 2012. There was no evidence either from the appellant or his solicitor dealing with the period of delay between 2 nd April and 27 th July 2012, being one of nearly four months.
The judge dealt with the application for an extension of time as a preliminary matter. He was referred to Section 204(2A) of the Housing Act 1986, which provides, and this is the amended version:
"(2A) The court may give permission for an appeal to be brought after the end of the period allowed by subsection (2), but only if it is satisfied—
(a) where permission is sought before the end of that period, that there is good reason for the applicant to be unable to bring the appeal in time; or
(b) where permission is sought after that time, that there was a good reason for the applicant's failure to bring the appeal in time and for any delay in applying for permission."
It is common ground between the parties that the court's discretion does not arise unless both of the Section 204(2A)(b) criteria are satisfied, namely, (1) good reason for the applicant's failure to bring the appeal in time, and, (2) good reason for any delay in applying for permission.
The judge held that the first criterion was satisfied and this issue therefore falls out of account. As for the second criterion, the judge had an evidential lacuna, which he referred to more than once. In para. 18 of the transcript of his judgment the judge clearly examined the submissions which were advanced before him, as summarised at para. 14, and held that they did not amount to a good reason. In reality, moreover, no reason was advanced for the delay because no evidence was filed on that issue. Accordingly, in the absence of explanation the applicant had failed to discharge the burden of persuasion which rested on him under Section 204(2A)(b).
Mr. Jan Luba QC, who did not appear below, and represents the appellant before me a pro bono basis, advances two grounds of appeal on behalf of his client. His primary ground is that the judge's approach was flawed in that it focused on the solicitors' default not the appellant's. He submits that on the available evidence the appellant personally could not have been responsible for the delay — and the verb "could" in that sentence is to be emphasised — and that there was no rule of law which visits the default of solicitors on to their clients. Put another way, the irresistible inference was that the appellant was not personally responsible and that his solicitors were.
Mr. Luba's second ground, advanced very much as a subsidiary matter, is that the existence of a draft undated consent order signed by the Local Authority's solicitors and not the appellant's, and referred to by the judge at para. 12 of the transcript, should give rise to the inference that the appellant's solicitors believed that no point would be taken on the absence of a formal application notice. The difficulty with this submission, as Mr. Luba recognised in argument, is that there was no evidence from the appellant's former solicitors that this was indeed their belief. It follows that the appellant's second ground is unsustainable and I rule against the appellant on it.
Mr. Luba drew my attention to early decisions of Insurance Commissioners in support of the proposition that "good cause" for delay in claiming relevant benefits could well be constituted by a claimant for benefits relying on the advice of his solicitors. For example, in case CSI 10/50(KL), tab 2 of the bundle, the evidence was that the claimant had consulted a solicitor and relied on his advice. Para.6 of the determination records that evidence was filed by the claimant's solicitor which fully explained what happened. Accordingly, the Insurance Commissioner was able to find as a fact that:
"The claimant as a result of his meetings with his solicitor and an official at the office of the Assistance Board reasonably believed that he was acting prudently and properly and in accordance with his solicitors' advice in accepting payments from the board and delaying to do anything further in connection with the claim under the National Insurance Industrial Injuries Act 1946 until his solicitor at a much later date advised him that a claim should be made. I am satisfied that he had adequate grounds for that belief and that he acted reasonably throughout, and on that ground I hold that he has shown reasonable cause for the delays which occurred."
On further analysis, therefore, it is far from clear that this case avails Mr. Luba's argument. In contrast to the instant case the Insurance Commissioner was treated to a full explanation in witness statements as to the reasons for the delay. The Insurance Commissioner was scarcely obliged to attempt to draw inferences on the basis of incomplete and/or inadequate material.
The same point may be made about the case located under tab 3 of the authorities' bundle, namely, CS 50/5(KL), where...
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