Zahanckauskas v Prosecutor Generals Office of the Republic of Lithuania

An appeal should be re-opened under Part 52.17 only where this is necessary to avoid real injustice. The court must undertake at least a basic assessment of the merits to determine whether legal representation could realistically produce material capable of changing the decision. The desirability of representation, or the possibility that a further lawyer might identify a new point, is insufficient without an indication that a material issue has not already been considered. The need for expedition in extradition proceedings is also relevant.

The appellant’s extradition appeal had been heard and disposed of earlier the same day. He had appeared without representation and argued that extradition would breach Articles 3 and 8 of the European Convention on Human Rights. He subsequently sought to re-open the case after it emerged that a legal aid application had been made, that legal aid was expected to be granted, and that counsel had been present in the court building but had not been identified before the hearing.

The central issue was whether the absence of representation made re-opening necessary to avoid real injustice.

1. Application refused. The court declined to re-open the extradition appeal under Part 52.17 of the Civil Procedure Rules.
2. Re-opening requires more than showing that representation would have been desirable. The court must consider the merits at a basic level and ask whether there is a realistic prospect that legal advice or representation would reveal something capable of changing the decision.
3. The appellant had previously been represented before the magistrate and had received legal advice. He had also been given an opportunity to present the factual basis of his arguments at the appeal hearing. Nothing placed before the court indicated that further representation would produce a material point that had not already been ventilated before the magistrates or the High Court.
4. The court recognised that an unrepresented appellant might reasonably feel that justice had not been done and that representation would ordinarily be preferable. Those considerations did not establish the threshold of real injustice.
5. The need for extradition proceedings to be dealt with quickly reinforced the conclusion that the case should not be adjourned or re-opened without a realistic merits-based basis.

• High Court (Administrative Court): The appellant’s extradition appeal was heard and disposed of earlier on 19 July 2012. On the subsequent application to re-open it, the court refused the application.