Sciezka v Court Judge of Sad Okreowy Kielck Poland
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SULLIVAN,MR JUSTICE WILKIE |
| Judgment Date | 04 June 2009 |
| Neutral Citation | [2009] EWHC 2259 (Admin) |
| Docket Number | CO/542/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 04 June 2009 |
[2009] EWHC 2259 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: Lord Justice Sullivan Mr Justice Wilkie
CO/542/2009
Abigail Smith (instructed by GT Stewart Solicitors) appeared on behalf of the Applicant
John Jones (instructed by CPS, Serious Crime Division) appeared on behalf of the Respondent
(Approved by the court)
: On Monday, 12th January 2009 District Judge Tubbs ordered the applicant's extradition to Poland. The applicant's solicitors attempted to give notice of an appeal against that order within the 7-day period prescribed by section 26(4) of the Extradition Act 2003 (“the Act”). The respondent contended that the notice of appeal had not been given within time and signified an intention to remove the applicant to Poland on 26th January 2009.
The applicant applied for an injunction to prevent removal. On 23rd January 2009 the Divisional Court (Maurice Kay LJ and Simon J) granted the applicant an interim injunction preventing his removal and ordered that his substantive application for injunctive relief should be listed for hearing separately from his appeal under the Act.
The Divisional Court also ordered the parties to agree a chronology of events for the period beginning with the District Judge's order for extradition on 12th January 2009 and ending on 20th January 2009. That was done and we now have to consider the applicant's application for injunctive relief. Whether he is entitled to that relief depends on whether he made a valid application to appeal against the District Judge's order within the 7-day period.
The agreed chronology is as follows:
“ Monday, 12th January 2009, 15:00: City of Westminster Magistrates' Court: District Judge Caroline Tubbs ordered the applicant's extradition to Poland.
Monday, 19th January 2009, 11:15 (approximately): The applicant's solicitors attended the Administrative Court office in order to file the applicant's notice of appeal (and supporting skeleton argument) against the extradition order. A senior legal manager at the Administrative Court office (Martyn Cowlin) refused to accept the notice, asserting that the 7-day period for filing the notice had expired and the notice was therefore out of time.
Monday, 19th January 2009, 14:59: Fax of unsealed copy of appellant's notice of appeal received from applicant's solicitors by Crown Prosecution Service (CPS) as representative of the respondent.
Monday, 19th January 2009, 15:00: The applicant's solicitors faxed the appellant's notice of appeal to the Administrative Court office, which accepted the notice for filing shortly afterwards at 15:03.
Monday, 19th January 2009, 15:30: The applicant's counsel spoke by telephone to Martyn Cowlin of the Administrative Court office, urging him to accept the notice for filing. Mr Cowlin agreed to accept the notice.
Monday, 19th January 2009, 16:26: CPS e-mailed Martyn Cowlin of the Administrative Court office asking whether the applicant's notice of appeal had been filed in time.
Monday, 19th January 2009, 16:55: Martyn Cowlin e-mailed CPS confirming that, following discussion with the applicant's counsel, he 'now agreed (rightly or wrongly) that the appeal should be issued'.
Tuesday, 20th January 2009, 11:42: The appellant's solicitors attended at the Administrative Court office and lodged a hard copy of the applicant's notice of appeal.
Wednesday, 21st January 2009: The Appellate Committee of the House of Lords delivered its opinions in Mucelli (Appellant) v Government of Albania (Respondents) (Criminal Appeal from Her Majesty's High Court of Justice) Moulai (Respondent) v Deputy Public Prosecutor in Creteil, France (Appellant) (Criminal Appeal from Her Majesty's High Court of Justice) [2009] UKHL 2.
Wednesday, 21st January 2009, 12.48: CPS e-mailed Simon Slidders, a senior legal manager at the Administrative Court Office, attaching a copy of the Mucelli and Moulai judgment, explaining that, on the basis of this decision, the deadline for filing and service of the applicant's notice of appeal was midnight on Monday, 19th January 2009 and asking whether this deadline had in fact been met. The e-mail referred [to] arrangements which had been made for the applicant's surrender on Monday, 26th January 2009 and stated that the CPS was keen that these should be maintained if in fact the notice had not been lodged before the deadline.
Wednesday, 21st January 2009, 15:43: Simon Slidders e-mailed CPS stating that 'a faxed copy of the notice of appeal was lodged at 3.03 pm on Monday, 19th January…' adding 'whether the court was right to refuse to issue the appeal on Monday, 19th has not yet been decided judicially'. He went on to state 'Hard copies of the appellant's notice were lodged on the morning of 20th January, when the appeal was issued at 11.42 am…'
Thursday, 22nd January 2009, 12:20: Faxed copy of applicant's notice of appeal sealed on 20th January 2009 was received by CPS from applicant's solicitors.”
The agreed chronology then refers to the grant of the interim injunction on Friday, 23rd January 2009.
Mucelli is now reported at [2009] 1 WLR 276. Lord Neuberger, with whom Lord Phillips, Lord Carswell and Lord Brown agreed, said in paragraph 41 of his opinion that three questions of principle arose:
'(a) Must the appeal notice be both filed in the High Court and served on the respondent within the 7 or 14 days? (b) Is the court precluded from extending time for the filing and/or the service of the appeal notice? (c) What happens if the office of the recipient of the notice is closed before the last moment for service?”
Lord Neuberger's answers to questions (a) and (b) were in the affirmative:
'72. For these reasons, I conclude that an appellant's notice must be served, as well as filed, within the 7-day period referred to in section 26(4)…
80. For these reasons, I consider that it is not open to the court to extend time under section 26(4) or to dispense with service of the notice of appeal…”
Having answered these two questions of principle, Lord Neuberger then considered two further questions. The first was whether the provisions of CPR 6.7, which deals with deemed service, were applicable to the time limits under sections 26(4) and 103(9):
'81… Thus, under the rules as they were at the time of the instant appeals, a document transmitted by fax after 4.00 pm was deemed to have been served 'on the business day after the day on which it is transmitted'. Such deeming provisions have been consistently held to be irrebuttable: see eg Anderton v Clwyd County Council No 2 [2002] EWCA Civ 933, [2002] 1 WLR 3174. In these appeals, it appears to have been generally assumed that these provisions govern the question of when a notice of appeal is treated as having been 'given' under sections 26(4) and 103(9).
82. In my view, that general assumption is wrong. Section 26(4) requires the appellant's notice to be issued and served within 7 days, and I can see no warrant for the CPR being invoked to cut down that period. If a statute permits something to be done within a specific period, it is hard to see how that period can be cut down by subordinate legislation, as a matter of principle. In relation to the first two points of principle raised by these appeals, it is part of the prosecutor's case, indeed it is part of my reasoning, that the reference to rules of court in the section govern the manner, not the time, of service. In these circumstances, it is particularly hard to see how invocation of provisions of the CPR can be justified in order to curtail that period. The point is reinforced by practical considerations: the 7-day period laid down by section 26(4) is short, and it does not seem very fair to cut it down, even if only by a few hours. Although the 14 days permitted by section 103(9) is somewhat longer, the same reasoning applies.”
(Emphasis added).
Lord Neuberger then dealt with what happened if it was impossible to give notice on or during the final part of the last day in paragraphs 83 and 84.
The reference to it being part of his reasoning that the reference to rules of court in the section govern the manner, not the time, of service is a reference back to Lord Neuberger's conclusion in paragraph 75 of his opinion, in which he rejected the argument that the court had power to extend time, or indeed to dispense with service, in accordance with the rules of court. In response to that argument, Lord Neuberger said:
“I cannot accept that argument. First, the way in which the subsection is linguistically structured appears to me to mean that those words govern the way in which 'notice of an appeal' is to be 'given', not the time within which such notice is to be given, which is dictated by the closing part of the subsection.”
Ms Smith accepts, on behalf of the applicant, that the 7-day deadline for filing and serving the notice of appeal expired at midnight on Monday, 19th January 2009. It is clear from the agreed chronology that a copy of the notice of appeal was faxed to (and received by) the Administrative Court office at 3.00 pm on Monday, 19th January; and that, shortly before that, a fax of the unsealed copy of the notice of appeal was sent to (and received by) the respondent.
There is no dispute that the document that was faxed to both the Administrative Court office and the respondent on Monday, 19th January was a notice of appeal against District Judge Tubbs' order. Was it filed and served on 19th January?...
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