R the National Council for Civil Liberties (liberty) v Secretary of State for the Home Department

Hearing dates: 27–28 February 2018

Approved Judgment on procedural matters

Introduction

This is the judgment of the Court on procedural matters. We have today also given a separate judgment on the substantive claim for judicial review, which we heard on 27–28 February 2018. In this judgment we address two applications made by the Defendants:

(1) an application for an extension of time to file and serve their skeleton argument for the substantive hearing;

(2) an application to rely on further evidence, namely the second and third witness statements of Mr Andrew Scurry, with their exhibits.

(1) The Defendants' application for an extension of time for their skeleton argument

The Defendants apply for an extension of time in which to file their skeleton argument for the hearing on 27–28 February. That skeleton argument was filed on 19 February 2018, whereas previous extensions (which had been the subject of consent orders approved by the Court) had required the skeleton argument to be filed by 15 February 2018.

It is common ground that an application for an extension of time in such circumstances is akin to an application for relief from sanctions: see the decision of the Court of Appeal in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 WLR 2472, applying the well-known principles in Denton and others v T H White Limited (Practice Note) [2014] EWCA Civ 906; [2014] 1 WLR 3926. That exercise involves three stages:

(1) to identify and assess the seriousness or significance of the breach;

(2) to consider why the breach occurred;

(3) to consider all the circumstances of the case, so as to enable the Court to deal justly with the application.

In the circumstances, when this application was considered at the beginning of the hearing on 27 February 2018, Mr Chamberlain QC (appearing on behalf of the Claimant) fairly accepted that, although the question is one for this Court, he would not resist the application for an extension of time.

On 27 February 2018, before the substantive hearing began, we announced our decision on this application (granting the extension of time) and made consequential orders. We said that we would give our reasons in writing later, which we now do.

This claim for judicial review raises what are, on any view, matters of great public importance, both to the Claimant and others who fear that their privacy rights are being unlawfully breached; and for the Government, which has a duty to protect the security and safety of the public. The case also raises important questions about the relationship between primary legislation enacted by the Parliament of the United Kingdom and fundamental rights which are protected in European Union (“EU”) law, in particular in the EU Charter of Fundamental Rights and Freedoms. It is readily apparent therefore that this is no ordinary litigation.

When permission was granted by Jeremy Baker J on 14 June 2017, he made various directions as to the timetable which was to be followed leading up to a substantive hearing before this Court. According to that timetable the Claimant's skeleton argument was to be filed at least 28 days before the substantive hearing: that was 29 January 2018. The Defendants were to file their skeleton argument not less than 21 days before the hearing: that was 5 February 2018.

It became apparent that it would be sensible to extend those deadlines by a short amount because the Court of Appeal was due to give judgment in R (Watson & Others) v Secretary of State for the Home Department on 30 January 2018. Accordingly, on 26 January 2018 the Claimant sought an extension of time for its skeleton argument to be filed and served by 6 February 2018. The Claimant proposed that the deadline for the Defendants' skeleton argument should be extended to 13 February 2018. The Defendants agreed and that was the subject of a consent order made by a lawyer in the Administrative Court Office pursuant to his delegated powers.

On 1 February 2018 the Claimant asked for a further two day extension for its own skeleton argument. The Defendants again agreed, with their deadline being similarly adjusted to 15 February 2018. Again this was the subject of a consent order made by the lawyer in the Administrative Court Office.

The Claimant's skeleton argument was filed and served on the due date, 8 February 2018. However, the Defendants' skeleton argument was not filed and served on the due date of 15 February 2018. Furthermore, no application for an extension of time was made in advance of the expiry of that deadline. Indeed, no indication was given to the Claimant's representatives that there would be any difficulty in complying with the agreed extended deadline.

The Claimant's solicitor emailed the Defendant's solicitor to point out that nothing had been received. The Defendants' solicitor replied, stating that:

“The situation is that due to immoveable and competing pressure on Counsel time, the Defendants require more time to finalise their skeleton argument. It will be ready on Monday 19 February. It is submitted that your client will not be prejudiced by this.”

The Claimant's solicitors wrote back on 16 February 2018, noting that an application would be required and that, in the absence of an adequate explanation, the Claimant would not consent to it.

In the circumstances which we have outlined, we have come to the conclusion that the Defendants' application for an extension of time should be granted. We take the view that this was a significant breach of a court order, albeit an order which had been agreed between the parties.

The reasons for the application are now more fully set out in the skeleton argument filed in support of this application on behalf of the Defendants, at para. 2(f). Unfortunately, as Mr Eadie QC accepted on behalf of the Defendants, the full reasons were not sufficiently explained in the application for an extension of time. It was not simply because of pressure on counsel's time but for a number of reasons that the Defendants needed to apply for an extension of time.

In all the circumstances of this case, not least the great public interest in this case for all concerned and because there was no objection by Mr Chamberlain at the hearing before us, we have taken the view that justice requires that the extension of time should be granted.

However, we do not take the view that breaches of deadlines of this sort, even of a day or two, should be regarded with equanimity.

In the circumstances which have arisen, we accept the application made by the Claimant that the Defendants should have to pay the Claimant's costs of the application for extension of time in any event. We also take the view that they should be assessed on an indemnity basis. 1 Finally, we take the view that these costs should be outside the scope of the cost capping order which was made by Lang J in this case.

This is for the following reasons:

(1) The Defendants failed to apply for an extension of time before the relevant deadline expired.

(2) They did not even inform the Claimant's representatives of the need for one until after the deadline had expired, when those representatives enquired why they had not received the skeleton argument.

(3) The email correspondence between the parties at that time indicates to us that the Defendants' solicitors simply assumed that the extension of time would be granted, in effect presenting this as a fait accompli not only to the Claimant but also to this Court.

(4) Although the delay was only by a few days, in the context of a case of this importance and magnitude, that was not insignificant. It had an impact on the timetable which the members of the Court had otherwise available to them for proper preparation for the substantive hearing. It also had an impact on the time available for the Claimant's counsel to prepare for the hearing.

(5) The Government, like all litigants, must comply with orders made by the court, both to ensure fairness and to facilitate the orderly and efficient conduct of litigation,...