R Dinjan Hysaj (Claimant/Appellant) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Moore-Bick,Lord Justice Tomlinson,Lady Justice King
Judgment Date16 December 2014
Neutral Citation[2014] EWCA Civ 1633
Date16 December 2014
Docket NumberCase No: C4/2014/1674

[2014] EWCA Civ 1633




Mr. Justice Ouseley

[2014] EWHC 832 (Admin)



Mr. Justice Jay





His Honour Judge Taylor (sitting as a Judge of the High Court)



Lord Justice Moore-Bick

Vice-President of the Court of Appeal, Civil Division

Lord Justice Tomlinson


Lady Justice King

Case No: C4/2014/1674

Case No: A2/2014/1672

Case No: A2/2014/3369

The Queen on the application of Dinjan Hysaj
Secretary of State for the Home Department
Reza Fathollahipour
Bahram Aliabadibenisi
Christine May
John Robinson

Mr. Stephen Knafler Q.C. and Miss Sonali Naik (instructed by Duncan Lewis Solicitors) for the appellant

Miss Samantha Broadfoot (instructed by the Treasury Solicitor) for the respondent

Mr. Stewart Chirnside (instructed by Day Sparkes Solicitors) for the appellant

Mr. Ali Reza Sinai (instructed by Kingsley Napley LLP) for the respondent

The appellant appeared in person

The respondent did not appear and was not represented

Hearing date: 11 th November 2014

Lord Justice Moore-Bick

These three cases have been heard together to enable the court to give guidance on the approach that should be taken to applications for extensions of time for filing a notice of appeal following the decisions of this court in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 W.L.R. 795 and Denton v T.H. White Ltd, Decadent Vapours Ltd v Bevan and Utilise T.D.S. Ltd v Davies [2014] EWCA Civ 906, [2014] 1 W.L.R. 3926. In each case the applicant failed to file a notice of appeal within the time prescribed by CPR 52.4(2), which made it necessary for him to seek an extension of time, but there the similarity between the cases ends.

R (Dinjan Hysaj) v Secretary of State for the Home Department


In this case the appellant is seeking judicial review of the Secretary of State's decision to treat as void his naturalisation as a British citizen. The appellant arrived in this country in July 1998 and claimed asylum. He gave a false date of birth in order to pass as a minor and falsely alleged that he had fled persecution in Kosovo. In fact he was from Albania. He was accepted as a refugee and was granted indefinite leave to remain, which would not have occurred if the true facts had been known. In 2004 the appellant applied for naturalisation giving the same information about his age and background and in November 2004 his application was granted. In 2008 the truth came to light, but it was not until February 2013 that the Secretary of State wrote to him to say that his grant of citizenship was void because it had been obtained by impersonation. On 8 April 2013 she served notice of her intention to make a deportation order.


On 13 th May 2013 the appellant started his proceedings for judicial review. He argued that the Secretary of State could deprive him of his citizenship on the grounds that it had been obtained by fraud only in accordance with the provisions of section 40(3) of the British Nationality Act 1981 and subject to his right under section 40A of that Act to appeal to the First-tier Tribunal. The Secretary of State, relying on various earlier decisions of this court, argued that, since the appellant's citizenship had been obtained by impersonation, it was a nullity and void ab initio. The matter came before Ouseley J. in the Administrative Court, who held in the light of the authorities that the appellant's grant of citizenship was indeed a nullity and dismissed the claim.


Judgment was handed down on 26 th March 2014. In the light of the draft judgment that had been circulated a few days earlier the claimant had prepared written submissions which included an application for permission to appeal. In the event the parties were able to agree the terms of a consent order, which was approved by the judge on 25 th March 2014. Paragraphs 5 and 6 of that order provided that the claimant's application for permission to appeal was to be adjourned for consideration on paper and that the defendant's submissions in response were to be lodged and served within 14 days. (In the event they were served over three weeks late.) No provision was made, however, for extending time for filing a notice of appeal. By an order dated 2 nd May 2014 Ouseley J. granted permission to appeal.


In order to pursue an appeal it was necessary for the appellant, who had been in receipt of public funding for the proceedings before the Administrative Court, to obtain an extension to his public funding certificate. On 19 th May 2014 his solicitors invited the Legal Aid Agency to extend his certificate to cover the appeal and in the event the certificate was extended on 22 nd May 2014. At that point the solicitors were in a position to file a notice of appeal on his behalf, but they decided to wait until another claimant for whom they acted, Mr. Agron Bakijasi, whose case raised the same issues as that of the appellant and had been heard at the same time, had arranged the finance necessary to enable his appeal to proceed. In the event, notices of appeal were filed on behalf of both appellants on 27 th May 2014, some 42 days out of time. The Secretary of State declined to agree to an order granting the appellant an extension of time, but has not actively opposed his application.

Fathollahipour v Aliabadibenisi


In this case the respondent, Mr. Fathollahipour, and the appellant, Mr. Aliabadibenisi ("Mr. Benisi"), are engaged in contested proceedings in Switzerland. Although the proceedings are primarily of a criminal nature, they include as an adjunct a claim by the respondent to recover a sum of money which he says was stolen by the appellant from a company in his ownership. The details of the proceedings are not relevant for present purposes; it is sufficient to say that they are continuing and that the appellant is contesting both the criminal charges and the respondent's civil claim against him.


On 4 th July 2013 on an application made without notice the respondent obtained a freezing injunction against the appellant preventing him from disposing of property in England and Wales up to the value of £400,000. The injunction was obtained under section 25 of the Civil Jurisdiction and Judgments Act 1982 in support of the respondent's claim in the Swiss proceedings. The order contained the usual provision allowing the defendant to spend a specific amount on living expenses and a reasonable sum on legal advice and representation.


On the return date, 12 th July 2013, His Honour Judge Seymour Q.C., sitting as a Judge of the High Court, adjourned the matter for a fortnight, directed the appellant to verify his affidavit and statement of assets on oath before a proper officer of the court and gave him an opportunity to file further evidence in opposition to the continuation of the order.


The matter came back before Jay J. on 30 th July 2013. The appellant represented himself. On that occasion the judge continued the order, directed that the respondent provide additional fortification for his cross-undertaking in damages and ordered the appellant to pay the costs of and occasioned by the hearings on 4 th, 12 th and 30 th July 2013. He also ordered the appellant to pay £30,000 on account of the respondent's costs by 20 th August 2013. The appellant asked the judge for permission to appeal, but his application was refused.


There followed various further proceedings in connection with the freezing injunction. The appellant apparently considered making an application to stay the order for costs but was, he says, persuaded by the respondent's solicitors that it would be a pointless exercise. At all events, he failed to make the payment on account of costs and as a result on 28 th August 2013 the respondent's solicitors served a statutory demand on him. On 12 th September 2013 the appellant applied to set aside the statutory demand. Once again, he represented himself, but was unsuccessful.


On 28 th November 2013 the respondent's solicitors served a notice of commencement of detailed assessment in respect of the respondent's bill of costs. The appellant says that he did not receive it, but on 16 th January 2014 the solicitors obtained a default costs certificate in the sum of £82,223.17, which they served on the appellant the same day.


On 20 th January 2014 the appellant made an application for an order that the respondent be required to increase the fortification for his cross-undertaking in damages. What prompted him to make that application is unclear. He represented himself, but his application failed and he was ordered to pay the respondent's costs in the sum of £4,550.


On 29 th January 2014 the appellant applied to set aside the default costs certificate. This time he instructed solicitors to act for him and was successful. As a consequence the detailed assessment proceedings continued and are still pending. As soon as the appellant's present solicitors were instructed they realised that it was necessary for him to challenge the award of costs made by the judge on 30 th July 2013. In order to release sufficient funds for the purposes of an appeal (as well as to pay legal...

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