Hysaj, R (On the Application Of) v Secretary of State for the Home Department

An application made after the deadline for filing a notice of appeal is governed by the rigorous principles applicable to relief from sanctions, although formally made under rule 3.1(2)(a) of the Civil Procedure Rules 1998. The court applies the three-stage approach of assessing the breach’s seriousness and significance, the reason for it, and all the circumstances.

Public law proceedings and litigants in person receive no separate regime. Public importance, the nature of the proceedings and responsibility for delay may nevertheless be relevant at the third stage. Lack of funds, self-representation and ignorance of the rules do not ordinarily provide good reasons. The merits generally matter only when plainly very strong or very weak.

Three applications for extensions of time to file notices of appeal were heard together. In R (Hysaj) v Secretary of State for the Home Department, the Administrative Court had dismissed a challenge to the treatment of the appellant’s naturalisation as void: [2014] EWHC 832 (Admin). Permission to appeal was later granted, but the notice was filed 42 days late.

In Fathollahipour v Aliabadibenisi, a notice challenging a costs order connected with a freezing injunction was filed approximately nine months late. In May v Robinson, a challenge to a costs order in Mental Health Act proceedings was filed approximately six years late.

The common issue was how the court should approach applications made after expiry of the time prescribed by rule 52.4(2) of the Civil Procedure Rules 1998.

1. Disposition. The application by Mr Hysaj for an extension of time was granted. The applications by Mr Aliabadibenisi and Mr Robinson were refused.

2. Applications made after expiry of the time for filing a notice of appeal are formally applications under rule 3.1(2)(a) of the Civil Procedure Rules 1998, rather than applications under rule 3.9. Nevertheless, the domestic authorities beginning with Sayers v Clarke Walker [2002] EWCA Civ 645 had established that such applications are analogous to applications for relief from sanctions. That approach was too firmly established to be displaced by the reasoning in Attorney General of Trinidad & Tobago v Matthews [2011] UKPC 38. The principles in Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Denton v T.H. White Ltd [2014] EWCA Civ 906 therefore applied.

3. The court must address three stages: assess the seriousness and significance of the breach; consider why the default occurred; and evaluate all the circumstances, giving particular weight to the factors identified in rule 3.9. Time runs from the date on which the lower court pronounces its decision. It does not run from the drawing or sealing of the order, or from the determination of an application for permission to appeal. An adjournment of that application does not extend time, and the parties cannot agree an extension.

4. There is no special regime for public law appeals or public authorities. Public importance, the nature of the proceedings and responsibility for delay may be considered at the third stage. Lack of funds, self-representation and ignorance of the rules do not ordinarily constitute good reasons. Reasonable co-operation remains required, and tactical reliance on minor defaults may be discouraged through costs orders.

5. The court should ordinarily avoid examining the merits. They assume significant weight only where they are obviously very strong or very weak without extensive investigation.

6. Mr Hysaj’s delay was serious in length but did not significantly affect the proceedings. Although ignorance of the applicable rule was not a good reason, the appeal raised an important public question and the respondent suffered no prejudice. By contrast, the other delays were serious and significant, lacked good reasons and undermined finality. Their extensions were therefore refused.

1. Court of Appeal (Civil Division): In [2014] EWCA Civ 1633 , granted Hysaj an extension of time to appeal, but refused extensions in Fathollahipour v Aliabadibenisi and May v Robinson.
2. Administrative Court: Ouseley J dismissed Mr Hysaj’s judicial review claim in [2014] EWHC 832 (Admin) , but subsequently granted permission to appeal.
3. High Court: Jay J made the costs order challenged by Mr Aliabadibenisi. HHJ Taylor made and later reaffirmed the costs order challenged by Mr Robinson.