Mucelli v Government of Albania; Moulai v Deputy Public Prosecutor in Creteil, France

The House considered whether the statutory requirement in the Extradition Act 2003 that "notice of an appeal must be given in accordance with rules of court" (see sections 26(4) and 103(9)) requires both filing (or lodging/entering) the appeal at the court office and serving the notice on the respondent within the seven- or fourteen-day statutory periods. The majority held that "given" requires completion of those tasks in accordance with the rules of court and within the statutory period, and that the statutory time limits cannot be shortened by court rules nor extended by the court so as to undermine the statutory timetable (see section 35 and analogous provisions in Part 2).

The court also held that where the recipient's office is closed for the whole of the final day the time for filing or service extends to the next business day, and that subordinate rules (for example deeming provisions about fax service after 4 pm) may not be used to cut down the statutory period. However, the court recognised scope for treating procedural failures shortly after a deadline as remediable in appropriate cases (for example by treating a transmission received before midnight on the final day as valid service).

Background and parties:

• The appeals arose from interlocutory points concerning the timeliness of appeals against District Judge decisions in extradition proceedings under the Extradition Act 2003.
• In Moulai the Deputy Public Prosecutor in Creteil (France) sought to resist Mr Moulai's High Court appeal on the ground that service was out of time though the appellant's notice had been filed within seven days.
• In Mucelli the Government of Albania relied on late service of an appellant's notice (filed within the statutory 14 days but not served until later) to contend that the appeal was ineffective.

Procedural path: both matters came to the House by way of appeal from the Divisional Court decisions in the Administrative Court (see [2008] EWHC 1024 (Admin) (Moulai) and [2007] EWHC 2632 (Admin) (Mucelli)).

Relief sought / issues framed:

• Whether "notice of an appeal must be given" under sections 26(4) and 103(9) requires both filing (or lodging/entering) at the court and service on the respondent within the statutory period.
• Whether the court has power under rules of court (for example CPR provisions) to extend the statutory time for filing or service or to dispense with service where the statutory period has expired.
• How deeming rules (for example CPR provisions deeming a fax sent after 4pm to be served on the next business day) interact with the statutory periods and what effect an office being closed on the final day has.

Court's reasoning and conclusions:

• The majority concluded that the word "given" is to be read with reference to the relevant rules of court and means that notice must be both filed (or lodged/entered) and served on the respondent within the statutory period (seven days under Part 1; fourteen days under Part 2). That interpretation promotes practical and United Kingdom–wide consistency in extradition procedure.
• The court held that the statutory time limits are prescribed by Parliament and cannot be shortened by subordinate rules (so deeming provisions in procedure rules cannot operate to curtail the statutory period) and that the court does not have power to extend those statutory periods or to dispense with service in a way that undermines the statutory timetable (see section 35(6) and section 117(4)).
• The court accepted that where the recipient's office is closed for the whole of the final day the time for filing or service is extended to the next business day, and that a notice properly sent and received before midnight on the final day will satisfy the statutory requirement even if the recipient's office would not in practice have been open late.
• The House applied these principles to the facts: it dismissed the prosecutor's appeal in Moulai (finding the notice had been validly given) and dismissed Mr Mucelli's appeal (finding service was out of time and the appeal ineffective). The House invited submissions on costs.

This was an appeal by way of two consolidated appeals. The House held that the statutory requirement that "notice of an appeal must be given in accordance with rules of court" (Extradition Act 2003, sections 26(4) and 103(9)) requires both filing (or lodging/entering) the notice at the court and serving it on the respondent within the statutory seven- or fourteen-day period. Those statutory time limits cannot be curtailed by court rules nor extended so as to undermine the statutory timetable; where the recipient's office is closed for the whole of the final day the time extends to the next business day and a notice received before midnight on the last day will be effective. Applying these principles, the House dismissed the prosecutor's appeal in Moulai and dismissed Mr Mucelli's appeal.

Appeals to the House of Lords from the Divisional Court (Administrative Court). Moulai: Divisional Court decision reported at [2008] EWHC 1024 (Admin). Mucelli: Divisional Court decision reported at [2007] EWHC 2632 (Admin). The appeals raised preliminary issues about the timeliness of appellant's notices under the Extradition Act 2003.