The National Council for Civil Liberties (Liberty), R (On the Application Of) v Secretary of State for the Home Department & Anor (Procedural Matters)

An application to extend time for filing a skeleton argument is akin to an application for relief from sanctions. The court should assess the seriousness and significance of the breach, consider why it occurred, and then evaluate all the circumstances so as to deal justly with the application.

Permission to rely on late evidence is a discretionary matter requiring particular caution. The court must secure fairness to the opposing party and have regard to the public interest. Public authorities have a continuing obligation to keep the court informed by relevant and up-to-date evidence. A successful procedural application may nevertheless attract indemnity costs where the conduct was unreasonable to a high degree.

This was a first-instance judicial review concerning the legality of the communications-data regime and the relationship between primary legislation and rights protected by European Union law. The defendants made two procedural applications before the substantive hearing: first, for an extension of time to file their skeleton argument; and secondly, for permission to rely on updated evidence from Andrew Scurry, including evidence about the proposed Office for Communications Data Authorisations.

The court determined whether the delay and late evidence should be permitted, and what costs consequences should follow.

1. Extension of time. The defendants’ application was granted. An application for an extension of time in these circumstances was akin to an application for relief from sanctions. The court applied the three-stage approach identified in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, applying the principles in Denton and others v T H White Limited (Practice Note) [2014] EWCA Civ 906: assess the seriousness or significance of the breach; identify why it occurred; and consider all the circumstances so as to deal justly with the application.
2. The breach was significant. The explanation was initially inadequate, and the defendants had failed to seek an extension before the deadline expired. Nevertheless, the importance of the litigation, the public interest, and the claimant’s decision not to oppose the application meant that justice required an extension.
3. Late evidence. The application to rely on the second and third witness statements of Mr Scurry and their exhibits was granted under CPR rule 54.16(2)(b). Although the application was not strictly one for relief from sanctions, the court had to exercise its discretion with due caution. It had to consider fairness to the claimant and the wider public interest, and it was appropriate to receive the evidence so that the court had the fullest and most up-to-date information relevant to the issues.
4. Public authorities have a continuing obligation to keep the court updated with relevant evidence. The defendants’ failure to update the evidence earlier was unsatisfactory, particularly because much of the material had been known before the hearing.
5. Costs. The defendants were ordered to pay the costs of both applications in any event. The costs of the extension application were assessed on the indemnity basis. Applying Kiam v MGN Ltd (No. 2) [2002] EWCA Civ 66, the relevant standard was conduct unreasonable to a high degree. Both costs orders were placed outside the existing costs-capping order.

First-instance procedural decision of the Divisional Court of the High Court. The judgment records that the substantive judicial review was dealt with in a separate judgment.