Ingrid Skilbeck v Jane Williamson (Chair of The Tribunal) and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 26 August 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0826-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO//3143/99 |
| Date | 26 August 1999 |
[1999] EWCA Civ J0826-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)
Royal Courts of Justice
Strand
London WC2
Mr Justice Collins
CO//3143/99
MR D WOLFE (instructed by David Levene & Co., London N22 8HF) appeared on behalf of the Applicant.
MR J LITTON (instructed by the Treasury Solicitor, London SW1H 9JS) appeared on behalf of the First Respondent.
MS K STEYN (instructed by the Oxfordshire County Council, Legal Services, Oxford OX1 1ND) appeared on behalf of the Second Respondent.
Thursday, 26th August 1999
This is an application by Ingrid Skilbeck for leave to appeal out of time against the decision of the Special Educational Needs Tribunal. The decision concerned whether there should be an assessment of the needs of the Applicant's daughter, who is now 16 1/2, and is thus at the end of the time which would be covered by any statement of special educational needs.
The decision in question was given on 10th June 1999 and was received by the Appellant, who was appearing in person, no doubt the next day or a couple of days later. She was concerned and wanted to appeal. She thought that there were errors of law, and on 18th June she wrote a letter to the tribunal seeking a review. In the meantime she had been endeavouring to find a solicitor to act on her behalf, as she felt, understandably, that that was necessary if the case was to go to the High Court. She appreciated that this was something of an expert field and therefore it was necessary to find a solicitor who knew what he was doing. It took her until 23rd June to find her solicitor, Mr Silas, who has since acted on her behalf.
That delay has been criticised on the basis that she knew that she only had 28 days in which to lodge the appeal. So be it, but it seems to me that it was quite impossible to say that the Appellant was not acting reasonably in seeking such a solicitor and in the steps that she took to find him. The solicitor understandably and sensibly asked for a fax to be sent to him of the decision in order to be able to have a preliminary view. He then agreed to take the case on because he felt that there was an arguable case, but he had of course to see the client. He received, on 24th June, a fax of the decision. He was not able to see the Appellant herself until the 29th, that was the following Tuesday, so a weekend intervened.
It was then clear that legal aid would be required. This was not a straightforward case in relation to means, and so the Appellant had to obtain the necessary information. This she did. As a result, there was some delay and it was not until 5th July that the legal aid form was faxed to the Legal Aid Board. Time was then very tight because the time for appeal expired on 8th July. Unfortunately (and this was undoubtedly an error by the solicitor although, in the context of the circumstances here, it may well be that it made no difference), he did not notify the Respondents or either of them that he was intending to appeal but there was a problem with legal aid.
Unfortunately, the Legal Aid Board refused to grant an emergency certificate on the basis that the matter was too complicated for a faxed consideration. The application was, therefore, resubmitted on the 7th, the day before time expired. Unfortunately, the Legal Aid Board either mislaid or did not receive the postal application. Certainly, they could not find it when Mr Silas chased them on the 16th. Criticism has been levelled for that delay, that is to say between the 7th and the 16th, and it is suggested that there should have been an earlier chasing. That may well be a fair point and perhaps with hindsight Mr Silas would accept that he should not have waited until the 16th before he chased the Legal Aid Board.
As it was, when he did chase, he was told that the application could not be found. He faxed a copy. He chased again three days later and was told yet again that nothing could be found. He tried again, having sent a further fax on the 21st only to discover that again there were problems because, I think, the gentleman who was supposed to receive it had fallen ill, so he was not there and no one else looked at it. Eventually, when he spoke to someone on the 21st the Legal Aid Board appreciated that they had been at fault, as clearly they had, and emergency legal aid was granted.
Counsel was instructed on the 22nd because it was a requirement that counsel's advice be obtained. That, I think, was a Thursday. Unfortunately, counsel did not receive the instructions until the Monday. Perhaps it was something to do with the postal system. Again it is suggested that the instructions in those circumstances should have been faxed. I do not know how bulky they were, but it may be that counsel's chambers would not have been overly happy to receive that sort of fax as indeed the Legal Aid Board were not. Be that as it may, counsel advised and drafted a notice of appeal and returned that on the Wednesday, the 28th, which seems to me to be expeditious enough.
Again, there was some slight delay until the appeal was lodged because it was not lodged until 3rd August. The reason for that was that Mr Silas was on holiday and did not return until 2nd August and it was necessary for the witness statement to be signed by him. It would have been possible to devise a way around that, but I do not think that Mr Silas can properly be criticised for that subsequent slight delay.
I have been referred to the principles and they are summarised helpfully in the decision of Sedley J in Phillips v Derbyshire County Council [1997] ELR 461 at 464C. I do not need to read it. Suffice it to say, for the purposes of this case, that it is desirable and in most cases will be necessary that there is an acceptable explanation provided for the delay, that the time limits must be complied with, particularly in cases involving public administration, and that matters such as pressure at work and lawyers being on holiday are not normally matters which will appeal to the court as excuses for any delay. However, the need for legal aid and delay occasioned by legal aid is a matter which can be taken into account in deciding whether discretion should be exercised to allow a case to proceed notwithstanding delay. Much will depend upon the circumstances of the individual case and the steps taken by the solicitor in question.
As it seems to me, looking at it in the round, the solicitor and indeed client did not in any respect act unreasonably. Of course, looking with hindsight it is possible to identify things which could have been done perhaps somewhat more quickly than they were and days could have been saved. In the circumstances of this case, particularly having regard to the manner in which the Legal Aid Board dealt with the application, it is highly unlikely that the appeal would have been lodged in time in any event. It might have been only a few days late, but it would have been late.
In my judgment, the circumstances of this case, bearing in mind the principles to which I have been referred and which I do not need to set out in this judgment (it suffices to say that I have them well in mind), there has been a reasonable excuse provided and this is a proper case, in my judgment, where the appeal should be permitted to go ahead.
I should only add this. Ms Steyn, on behalf of the Local Education Authority, did also submit that the appeal was without merit and that that was a factor which I could take into account. Certainly, if the court takes the view that an appeal is without merit, that is a matter which undoubtedly is relevant, but it seems to me that it is quite plain that there is an arguable point here. It cannot be said that the appeal is bound to succeed; equally it cannot be said that it is bound to fail. In those circumstances, I do not think that this is a case where the merits are such as to tip the balance one way or the other.
Accordingly, I will allow this application.
My Lord,...
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