Lumenica v Government of Albania

In extradition appeals, statutory time limits may be extended where their operation would impair the essence of the right of appeal and justice requires an extension. The phrase “exceptional circumstances” is a warning to proceed cautiously, not a freestanding test of exceptionality. The court must examine whether delay is attributable to the requested person, while recognising that represented litigants may ordinarily rely on their solicitors.

A failure to comply with a statutory filing or service requirement cannot be cured. An irregularity arising only under procedural rules may be remedied with the court’s permission. The protection of article 6 in this context does not extend to a non-British national who has no common-law or civil right to remain in the United Kingdom.

The court considered four extradition appeals raising questions about strict statutory time limits and the procedure for bringing appeals. The appellants in Lumenica v Government of Albania and Ragul v Government of Azerbaijan filed and served notices late. The appeal in Ratajczak v Judicial Authority of Poland raised the consequences of a faxed notice, followed by surrender before the appeal was regularised. The appeal in Demkowski v Regional Court of Law in Czestochowa concerned a non-British national seeking an extension of time and relying on article 6. The court applied the principles identified in R (on the application of) Halligen v Secretary of State for the Home Department.

1. Time extensions. Applying R (on the application of) Halligen v Secretary of State for the Home Department, the court held that it may extend time where a strict limit would impair the essence of the right of appeal and the requested person has personally done all that could reasonably be expected to bring and notify the appeal in time. The court must examine whether delay is attributable to that person. A represented litigant is not ordinarily required to chase solicitors to ensure compliance. The fact that solicitors’ errors may be common does not justify denying an appeal where justice requires it.
2. The description of circumstances as “exceptional” imposes caution and indicates that extensions should be rare. It does not constitute an additional legal test. The court extended time in Lumenica v Government of Albania and Ragul v Government of Azerbaijan.
3. Statutory and procedural requirements. The distinction drawn in R (on the application of Aldhouse and the Government of Thailand) v Secretary of State for the Home Department remained good law. Non-compliance with a statutory filing or service requirement cannot be remedied. A failure imposed only by the rules may be cured with permission under CPR 3.10. The failure to serve the Secretary of State in Ragul was therefore remediable.
4. Ratajczak. A faxed notice did not comply with the applicable procedural requirements because the solicitors failed to provide the required undertaking and did not attend the court to regularise the filing. The court adjourned the issue whether the defect should be cured, requiring evidence about the appellant’s condition, his wish to pursue the appeal, and whether surrender could be unwound. The court expressed considerable doubt on those questions.
5. Demkowski. The appellant was not a British citizen and had no common-law or civil right to enter or remain in the United Kingdom. The nationality distinction recognised in Moustaquim v Belgium and R (on the application of) Al Rawi & Ors v Secretary of State for Foreign and Commonwealth Affairs was legitimate. The court had no power to extend time, and the proposed appeal had no merit.