Philogene v Highbury Magistrates' Court

An extension of time for an application for permission to appeal requires a sufficient explanation for the delay, a real prospect of success, or another compelling reason. The court will consider the merits even where the delay is substantial. A general assertion that the matter could not be rushed does not justify delay where the applicable timetable is measured in days or weeks. Judicial review is inappropriate where the application is unclear, identifies the wrong respondents, fails to establish the relevant factual basis, and is out of time, particularly where the proper route was by case stated and that route is also unavailable.

Francis Philogene was convicted by magistrates on 22 June 1994 for non-payment of a community charge. His first application for judicial review was refused on paper by Schiemann J on 5 April 1995. A renewed application was refused by Popplewell J on 11 August 1995.

Mr Philogene did not seek permission to appeal until more than five years later. His notice of appeal was subsequently struck out after he failed to comply with procedural requirements. He then made a further application on 25 April 2001 for permission to appeal out of time and, in substance, for reinstatement. The central issues were whether the delay should be excused and whether the proposed appeal had sufficient merit.

1. Application for an extension of time. Lord Justice Rix considered whether the application could properly be reinstated despite the lengthy delay. The relevant considerations included the explanation for the delay, the merits and any other compelling reason. The Court of Appeal’s timetable for permission applications is tight, ordinarily involving only days or weeks.
2. Explanation for delay. Mr Philogene said that the matter could not be rushed and might take many years to prepare. That did not amount to a good reason for failing to comply with the applicable timetable or for waiting more than five years before seeking permission to appeal.
3. Merits. The proposed appeal had no real prospect of success. The original application lacked clarity, made allegations principally against the local authority while naming the magistrates as respondents, and did not explain what facts had been placed before the magistrates or what Mr Philogene had said. It was also out of time. The proper procedure was by case stated, for which he was by then also late.
4. The possibility that Mr Philogene might have obtained community charge benefit did not alter the position. The application disclosed no good reason for judicial review and no real prospect of success. The application was refused, with no order for costs.

• Court of Appeal (Civil Division) — On 2 November 2001, the court refused the renewed application for permission to appeal out of time and for reinstatement of the earlier appeal application: [2001] EWCA Civ 1718.
• Queen's Bench Division — Schiemann J refused the original judicial review application on 5 April 1995. Popplewell J refused the renewed application on 11 August 1995.