Arunthavaraja v Administrative Court Office

Judicial review is not the appropriate method for challenging an Administrative Court Office decision not to issue an apparently out-of-time notice of appeal. The dispute should be referred to a judge under CPR rule 3.2 or addressed through the court’s inherent jurisdiction to control its own processes.

Where an extradition appeal notice must be filed and served within seven days, filing or service on the next business day is valid if the final day falls while the relevant office is closed. The requirement of service remains strict. A retrospective order for substituted service cannot cure a complete failure to serve within the statutory period, since that would circumvent the time limit.

The claimant was ordered to be extradited by the City of Westminster Magistrates’ Court under section 21(3) of the Extradition Act 2003. His solicitors attempted to file a notice of appeal on Monday 4 August 2008, the day after the seven-day period expired, but the Administrative Court Office refused to issue it.

The claimant sought judicial review. The court considered whether judicial review was available, whether the notice had been filed in time following Mucelli v Government of Albania, whether service had occurred within time, and whether substituted service could retrospectively cure the failure.

1. Proper procedure. The Administrative Court Office acted as a court officer. A party disputing a refusal to issue a notice should request reference to a judge under CPR rule 3.2. The court also has inherent jurisdiction to control its own processes. An application under that jurisdiction may be made ex parte or, where a respondent is required, against the other party to the underlying proceedings rather than the Administrative Court Office.
2. Filing. The earlier understanding that a seven-day extradition appeal deadline required filing on the preceding working day when the final day was Sunday was changed by Mucelli v Government of Albania [2009] UKHL 2. Filing on the next business day was therefore in time.
3. Service. The same principle applied to service, but the claimant had made no attempt to serve the notice on 4 August or within the statutory period. Inclusion of the notice in documents served on 12 August did not satisfy the statutory requirement.
4. Substituted service. The passage in Mucelli concerning substituted service contemplated an order made within the seven-day period. It did not authorise a retrospective order made months later. Under Elmes and Hygrade Food Products Plc [2001] EWCA Civ 121, alternative service could not be ordered retrospectively. Such an order would circumvent the absolute statutory time limit.
5. Unsealed copies. Although no decision was required, the court indicated that service of an unsealed copy might suffice if identical to the filed notice. If service of a sealed copy were technically required, CPR rule 3.10 might possibly cure the defect.
6. The court refused permission for judicial review, declined to direct issue of the notice of appeal, and lifted the stay on the extradition order.