Van Aken v Camden London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,Lord Justice Jonathan Parker,LORD JUSTICE JONATHAN PARKER,LORD JUSTICE MUMMERY |
| Judgment Date | 11 October 2002 |
| Neutral Citation | [2002] EWCA Civ 1724 |
| Date | 11 October 2002 |
| Court | Court of Appeal (Civil Division) |
[2002] EWCA Civ 1724
Lord Justice Ward
Lord Justice Mummery and
Lord Justice Jonathan Parker
IN THE SUPREME COURT OF JUDICATURE B2/2002/0892
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(His Honour Judge Cowell)
Royal Courts of Justice
Strand
London WC2
Mr Jan Luba QC and Mr Rajeev Thacker (instructed by Messrs Johns & Saggar, London NW5) appeared on behalf of the Appellant.
Mr Ranjit Bhose (instructed by Legal Services, London Borough of Camden) appeared on behalf of the Respondent.
I will ask Lord Justice Jonathan Parker to give the first judgment.
This appeal raises an issue of some general importance as to the application of the statutory time limit for appeals under section 204 of the Housing Act 1996 ("the 1996 Act"). The appeal is brought by Ms Deborah Van Aken, with permission granted by Lord Justice Rix on the papers on 19 June 2002, against an order made by His Honour Judge Cowell in the Central London County Court on 12 April 2002 dismissing her appeal under section 204 on the ground that the court had no jurisdiction to entertain it. The judge concluded that her appellant's notice had been filed after the expiry of the time limit prescribed by section 204(2), and that the court had no power to extend time.
The facts are not in dispute. In summary, they are as follows. On 7 November 2000 the appellant applied to the respondent, the London Borough of Camden, for housing as a homeless person. Camden made two offers of accommodation, which the appellant rejected for reasons which Camden accepted. In June 2001 Camden made her a third offer of accommodation, which she once again rejected, using Camden's standard appeal form. Camden rejected her appeal, asserting that the accommodation offered was suitable for her. It gave her until 9 July 2001 to accept the offer. The appellant persisted in her rejection of the offer, contending that the accommodation was unsuitable. Camden allowed her a further two days in which to accept, but she did not do so. On 17 July 2001 Camden notified her that it had discharged its statutory duty towards her. The appellant then requested a review of Camden's decision pursuant to section 202(1)(f) of the 1996 Act. The decision on the review was dated 22 November 2001. By its decision Camden upheld its earlier decision that the accommodation offered was suitable. The decision on the review was notified to the appellant's solicitors on 26 November 2001.
Section 204(1) of the 1996 Act provides that if an applicant who has requested a review under section 202 is dissatisfied with the decision on the review "he may appeal to the county court on any point of law arising from the decision or, as the case may be, the original decision". Section 204(2) provides as follows (so far as material):
"An appeal must be brought within 21 days of his being notified of the decision …"
It is common ground that in the instant case the last of the 21 days allowed by the subsection was Monday 17 December 2001. The judge made the following findings as to what happened on that day (in paragraph 5 of his judgment):
"On that day, the appellant's solicitors prepared three sets of appropriate papers, and a member of the solicitors' staff left the office at 3.30 and arrived at the court offices at 4.15 after they were closed to the public, and so her papers were not received. At 17.56, the solicitors sent by facsimile the appropriate copies of the appropriate documents and for full measure posted through the letter box of the court at 6.30pm another full copy of all the appropriate documents."
The judge went on to record that next morning, that is to say, on Tuesday 18 December 2001, the appellant's notice was, as he put it, "processed in the ordinary way", and was dated with that day's date.
In these circumstances Camden contended, as a preliminary point, that the court had no jurisdiction to hear the appeal since, firstly, the appellant's notice was one day out of time and, secondly, there was no power in the court to extend time.
It is convenient at this point to refer to those provisions of the Civil Procedure Rules ("the CPR") and of the Practice Directions which supplement them which are relevant to the issues on this appeal. I will refer to the Rules using the prefix CPR followed by the number of the relevant rule and to the Practice Directions by the initials PD preceded by the number of the relevant rule. Thus " CPR 52" is a reference to rule 52 and "52PD" is a reference to the practice direction supplementing that rule.
I start with CPR 52, section 1 of which (comprising CPR 52.1 to 52.12 inclusive) contains general rules about appeals. CPR 52.1(1)(c) provides that CPR 52 applies to appeals to a county court. CPR 52.1(3)(d) defines "appellant" as meaning "a person who brings or seeks to bring an appeal". CPR 52.1(4) provides that CPR 52 is subject to any enactment which sets out special provisions with regard to any particular category of appeal. Thus (and this is common ground) CPR 52 takes effect subject to the 21-day time limit prescribed by section 204(2) of the 1996 Act. CPR 52.2 provides that all parties to an appeal must comply with the relevant practice direction. CPR 52.4(2) provides that an appellant must "file" his appellant's notice at the appeal court within 14 days after the date of the lower court's decision unless the lower court otherwise directs. In relation to this appeal, however, the statutory time limit of 21 days after notification must be substituted.
At this point it is necessary to refer to the definition of "filing" in CPR 2.3(1). That sub-rule provides as follows:
"`filing', in relation to a document, means delivering it, by post or otherwise, to the court office; …"
While looking at CPR 2, I should also refer to CPR 2.8(5), which reads as follows:
"When the period specified —
(a) by these Rules or a practice direction; or
(b) by any judgment or court order,
for doing any act at the court office ends on a day on which the office is closed, that act shall be in time if done on the next day on which the court office is open."
I return to CPR 52. CPR 52.6 gives the appeal court a general power to extend time for filing an appeal notice (that is to say an appellant's notice or a respondent's notice).
I turn next to 52PD, section II of which contains general provisions about statutory appeals. Subparagraph 17.1 of 52PD provides (so far as material) that paragraph 17 applies to statutory appeals, that is to say to appeals to the court under any enactment. Hence paragraph 17 applies in the instant case. Subparagraph 17.1(2) provides that the paragraph is subject to any provision relating to a specific category of appeal. Subparagraph 17.2 provides that CPR 52 applies to statutory appeals with the amendments which follow. Subparagraph 17.3 provides that the appellant must "file" his appellant's notice at the appeal court within 28 days after the date of the decision of the lower court: once again, the statutory time limit of 21 days after notification must be substituted in the instant case.
Next, I refer to 2PD, which relates to court offices. Subparagraph 3.1 provides that every county court shall have an office. Subparagraph 3.2(1) provides that the office shall be open throughout the year except on weekends and national holidays and on such other days as the Lord Chancellor may direct. Subparagraph 3.3 provides (so far as material) that on days on which it is open the office shall be "open to the public … from 10am to 4pm".
Next, I refer to CPR 3.10, which provides (so far as material) that where there has been "an error of procedure such as a failure to comply with a rule or practice direction" the court may remedy the error.
Next, I refer to CPR 5, which deals with court documents. CPR 5.1 provides as follows:
"This Part contains general provisions about —
(a) documents used in court proceedings; and
(b) the obligations of a court officer in relation to those documents."
Lastly, I refer to 5PD. CPR 5 contains general provisions about documents used in court proceedings. Subparagraphs 5.1 and 5.5 of 5PD deal with documents for filing at court. Subparagraph 5.1 provides that the date on which a document was filed at court must be recorded on the document. Subparagraph 5.2 of 5PD is in the following terms:
"Particulars of the date of delivery at a court office of any document for filing and the title of the proceedings in which the document is filed shall be entered in court records, on the court file or on a computer kept in the court office for the purpose. Except where a document has been delivered at the court office through the post, the time of delivery should also be recorded."
Subparagraph 5.3 of 5PD deals with filing by fax. Subparagraph 5.3(1) and (2) provide that a document may be filed by fax without the need to send the original. Subparagraph 5.3(3) is in the following terms:
"A party filing a document by fax should be aware that the document is not filed at court until it is delivered by the court's fax machine, whatever time it is shown to have been transmitted from the party's machine."
Subparagraph 5.3(6) provides that:
"If a fax is delivered after 4pm it will be treated as filed on the next day the court office is open."
The judge upheld Camden's contentions on the preliminary issue as to jurisdiction. As to Camden's first contention, viz that the appellant's notice was "filed" after the expiry of the prescribed 21-day period, the judge said...
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