Ahmed & Anor v London Borough Of Southwark

When deciding whether to extend time for an application for permission to appeal, the court considers the length and explanation of the delay together with the merits. Personal circumstances and procedural complexity may justify some allowance, but a lengthy delay requires a sufficiently compelling explanation. Strong grounds indicating that the order below caused injustice may warrant relief despite the delay. A costs appeal cannot be used to reopen or attack the underlying judgment. Where the applicant identifies no arguable error in the costs assessment, and the application is substantially directed to an impermissible challenge to the original judgment, permission out of time should be refused.

The applicants brought proceedings against the London Borough of Southwark alleging racial discrimination and victimisation arising from failures to repair and reallocate their housing. The Central London County Court dismissed the claim on 7 April 1998. Permission to appeal was refused on 10 July 1998.

The Council’s costs were later assessed. On appeal, Judge Cooke, sitting with assessors, allowed the costs appeal in part on 24 August 2000 and refused permission to appeal. Mr Ahmed applied to the Court of Appeal on 20 December 2001 for permission to appeal out of time. The central issues were whether time should be extended and whether any arguable error had been shown in the costs decision.

1. Application refused. The Court of Appeal refused permission to file the application out of time.

2. In exercising its discretion on delay, the court should consider the length of the delay, the explanation offered and the merits of the proposed appeal. Personal circumstances and procedural complications may be taken into account, but the delay in this case was too substantial to be explained by those matters.

3. Exceptional merit may justify relief despite delay. If there were very strong grounds for thinking that the order below had perpetrated an injustice, the court might exercise its discretion in favour of a late applicant. That consideration did not assist the applicants because the proposed challenge principally concerned the original merits judgment, not the costs order.

4. Costs procedures were not an appropriate means of attacking Judge Zucker’s original judgment. The court below was right to exclude the affidavit and allegations directed to the trial decision from the costs proceedings.

5. The applicants identified no individual aspect of the taxation decision that Judge Cooke and the assessors had arguably decided wrongly. The proposed appeal therefore had no reasonable prospects of success, and the application was refused.

• Central London County Court: The substantive claim was dismissed on 7 April 1998.
• Court of Appeal: Permission to appeal that decision was refused on 10 July 1998.
• Central London County Court: The Council’s costs were assessed on 19 February 1999. On 24 August 2000, Judge Cooke, sitting with assessors, allowed the costs appeal in part and refused permission to appeal.
• Court of Appeal (Civil Division): The application filed on 20 December 2001 for permission to appeal out of time was refused.