Dhanota, R (on the application of) v Governor Of HMP Long Lartin & Ors

An out-of-time application for permission to appeal should be assessed by reference to both the delay and the merits. The court may examine the proposed appeal before deciding whether to extend time. A clearly properly arguable case may justify an extension; where there is no real prospect of success, the interests of justice do not justify it. In prison litigation, inability to use a personal computer does not by itself establish denial of a fair hearing or access to justice. The question is whether relevant material could reasonably be retrieved and put before the court through family, friends or other assistance. A later administrative decision, not served and already subject to a separate judicial review application, should be challenged by a fresh claim rather than added by amendment.

Mr Dhanota made two out-of-time applications for permission to appeal. The first concerned Maurice Kay J’s refusal of permission for judicial review of a prison decision deferring his request to use a computer for legal work. The second concerned a County Court decision by His Honour Judge Oliver-Jones QC declaring that property was held on resulting trust for Cindy-Lee Lindsay and awarding damages for breach of contract.

The Court of Appeal had to decide whether to extend time and, if so, whether either proposed appeal had a real prospect of success. The issues included the effect of imprisonment and lack of personal computer access on the fairness of the proceedings and on the applicant’s rights under European Convention on Human Rights Article 6.

Both applications were dismissed. Keene LJ, sitting as the single judge, refused to extend time because neither proposed appeal had a real prospect of success and the interests of justice did not justify extensions.

1. Under Rule 52 (15) (2) of the Civil Procedure Rules, an application for permission to appeal against refusal of permission for judicial review had to be made within seven days. The first appellant’s notice was filed more than five months late. The difficulties said to arise from imprisonment and correspondence with the court did not adequately explain the delay.
2. The court nevertheless considered the merits before deciding the extension. The governor’s decision to defer a substantive decision until the new Prison Service Instruction had been implemented at the high-security prison was reasonable and not perverse. A fresh application under the new procedure was required. The material concerning another prisoner did not establish inconsistency because that prisoner had only been told that he might qualify and that his application would be processed.
3. A later prison decision could not properly be challenged by amendment. It post-dated the application, had not been served on the proposed defendant, and was already the subject of a separate judicial review application in the Administrative Court. The appropriate course was a fresh claim.
4. In the second application, the County Court judge was entitled to conclude that imprisonment and lack of personal computer access had not prevented the applicant from conducting his case or complying with disclosure orders. The relevant computer discs were accessible through his father, friends or brothers, who could retrieve, print and submit material. The applicant had made no sufficient effort to obtain other documents or seek disclosure from non-parties.
5. There was no evidence beyond the applicant’s assertion that the trial judge had acted unfairly. The proposed challenge therefore had no real prospect of establishing a breach of European Convention on Human Rights Article 6. The applications were dismissed, and a copy of the judgment was to be supplied to the applicant at public expense.

• Court of Appeal (Civil Division): On 24 September 2002, Keene LJ dismissed both out-of-time applications for permission to appeal: [2002] EWCA Civ 1531.
• Administrative Court: Maurice Kay J refused permission for judicial review on 4 July 2001 in relation to the prison computer decision.
• County Court: His Honour Judge Oliver-Jones QC made the resulting-trust declaration and awarded damages on 11 April 2001.