Gercans v The Government of Latvia

A statutory time limit for appealing an extradition order cannot be extended where the governing legislation fixes the permitted period. Failure to serve the notice of appeal within that period deprives the High Court of jurisdiction, even where filing may arguably have been timely because the court office was closed. An email explaining an intended appeal does not itself constitute notice of appeal. The Civil Procedure Rules may potentially determine when an act is treated as done, but the interaction between that rule and the statutory time limit was left unresolved. Retrospective dispensing with service is an exceptional discretion and cannot be used to circumvent the statutory limit.

The claimant was the subject of a European arrest warrant and, under Part 1 of the Extradition Act 2003, a district judge ordered his extradition on 20 December 2007. He sought to appeal under section 26 of the Act. His solicitors attempted to file the notice on 24 December, when the court office was closed, and filed it on 27 December. Service on the Crown Prosecution Service was effected no earlier than 27 December and was received on 31 December.

The Divisional Court considered whether it had jurisdiction, focusing on the seven-day period in section 26(4), the effect of court closure on filing, and whether late service could be extended or dispensed with.

1. Appeal dismissed. The failure to serve the notice of appeal within the statutory seven-day period could not be cured. The court therefore had no jurisdiction to entertain the appeal.
2. Following District Court of Vilnius City v Barcys [2008] 1 AER 733, the time limit in section 26(4) was not extendable. An email to the Administrative Court Office did not amount to giving notice of appeal. The approach in R (on the application of Mendy) v Crown Prosecution Service [2007] EWHC 1765 Admin was consistent with that conclusion.
3. The court was troubled by the potential unfairness caused where an appellant cannot file because the court office is unexpectedly closed. Filing by fax was available under paragraph 5.3 of the Practice Direction to Part 5 of the Civil Procedure Rules, and could have produced timely filing in this case. The court nevertheless left open whether Rule 2.8(5), read with the reference to Rules of Court in section 26(4), could treat filing on the next day of opening as timely.
4. That filing issue did not require determination. Service was independently out of time. The fax sent on 27 December contained only the first page and did not constitute service. Postal or Document Exchange service could not have taken effect before 29 December.
5. Following Mucelli v The Government of Albania [2007] EWHC 2632 Admin, retrospective dispensing with service was an exceptional discretion. Its exercise here would have circumvented the statutory time limit, and no circumstances justified it.

• District Judge: District Judge Nicholas Evans ordered the claimant’s extradition on 20 December 2007.
• High Court (Administrative Court): The court dismissed the proposed appeal for want of jurisdiction because the statutory notice requirements were not met.