Enforcement notice — Appeal to High Court against decision of Secretary of State — 28-day time-limit — Whether grounds to extend — Long and inexcusable delay — Not outweighed by merits or hardship to applicants — Application refused
By a decision
letter dated May 28 1991 the Secretary of State for the Environment dismissed
an appeal by the applicants, Mayflower Glass Ltd, against an enforcement
notice. On June 12 the solicitors then acting for the applicants instructed
leading counsel to advise on the prospects of an appeal to the High Court
against the decision. By RSC Ord 55, r4(2) and (4) the time-limit for entering
such an appeal is 28 days from the date
time-limit expired, counsel’s advice was received. No mention was made of the
time-limit, but it was stated that the papers would be retained in chambers so
that junior counsel could settle the notice of motion if so instructed. Two
days later, on June 27, those instructions were given by telephone to the
chambers. Nearly five weeks then elapsed. On July 31 the clerk to the chambers
wrote to the solicitors, referring apologetically to the expiry of the
time-limit and stating that in consequence the applicants had been denied the
opportunity of a judicial review. On August 12 new solicitors were appointed
who wrote immediately to the former solicitors asking for information about the
case. On August 14 they followed that up with another letter asking whether any
application to extend time had been made under RSC Ord 3, r5. On August 20 the
new solicitors received the papers from the former solicitors and the next day
they instructed fresh counsel. On August 28 he returned the draft notice of
motion and on September 3 1991, 70 days out of time, an application was lodged
under Ord 3, r5 accompanied by the draft notice of motion. On October 24 1991
Hodgson J, who was not referred to the merits of the proposed appeal, refused
the application, holding that delay caused by counsel should not be looked at
more leniently than delay caused by a solicitor. The applicants applied for
leave to appeal against this decision.
1Editor’s note: Since January 2 1992 such an appeal requires leave:
see the footnote on p 1, ante, for details of the new provisions.
Although in
most cases time-limits were subject to flexibility where there was, on the
facts, good reason for holding that the strict limit should not apply, in this
case there had been a long and inexcusable delay and there was no ground for
holding that the judge had exercised his discretion wrongly. Had it been
thought right to put forward the substantial merits as a ground for extending
time there was no reason to suppose that that would not have been done by
counsel representing the applicants before the judge: see pp 158E and
159F-160A.
to in the judgment
Schafer v Blyth [1920] 3 KB 140
Application
for leave to appeal against decision of Hodgson J
This was an
application by Mayflower Glass Ltd for leave to appeal against the decision of
Hodgson J on October 24 1991 refusing an application under RSC Ord 3, r5 to
extend the time for entering and serving a notice of motion by way of appeal to
the High Court under section 289 of the Town and Country Planning Act 1990
against a decision of the first respondent, dated May 28 1991, dismissing an
appeal against an enforcement notice.
Straker (instructed by Sharpe Pritchard, agents for Taylor & Emmet, of Sheffield),
appeared for the applicants, Mayflower Glass Ltd.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for the Environment.
respondents, South Tyneside Metropolitan Borough Council, did not appear and
were not represented.
following judgment was delivered.
NOLAN LJ: This is an application by Mayflower Glass Ltd for leave to appeal
against a decision of Hodgson J given on October 24 1991, refusing an
application by the appellants under Ord 3, r5 of the Rules of the Supreme Court
to extend the time for appealing against a decision of the Secretary of State
for the Environment reached under the provisions now embodied in section 289 of
the Town and Country Planning Act 1990. The time laid down by the rules for
making such an appeal was four weeks. It is common ground, however, that by the
combined effect of section 289(1) and Ord 55 the time may be extended in a
proper case under Ord 3, r5. The learned judge held that this was not such a
case.
I preface my
general approach to the matter by referring to the decision in Schafer v
Blyth [1920] 3 KB 140, which is mentioned in the White Book [at para
3/5/1]. Mr Straker has drawn my attention to the basic principle governing the
power to extend time. It can be stated in the terms of one sentence in the
judgment on p 143 of the report. That sentence reads:
The object of
the rule was to give the Court in every case a discretion to extend the time
with a view to the avoidance of injustice.
It has, of
course, to be remembered that, as so often has been said, the concept of
justice cuts both ways. The time-limits themselves are designed to achieve
justice; but they are in most cases subject to the flexibility which the
applicants now seek to invoke where there is, on the facts, good reason for
holding that the strict limit should not apply.
What were the
facts here? The decision was given on
May 28 1991. On June 12 the solicitors then acting for the applicants
instructed leading counsel to advise on the prospects of an appeal. On June 25
1991, that is the day upon which the 28-day time-limit expired, the advice of
leading counsel was received by those solicitors. No mention was made of the
time-limit for appealing but it was stated that the papers would be retained in
chambers so that junior counsel could be instructed to draft the appeal
documents. On June 27, only two days later, that firm of solicitors, Ward
Hadaway, duly did give instructions for junior counsel to settle those papers.
A gap of
almost five weeks then elapsed. The next event we find is that on July 31 1991
the clerk to the chambers to which both leading and junior counsel belonged
wrote a letter referring apologetically to the time-limit and adding that: ‘In
view of the strict deadlines set down for these matters, you have been denied
the opportunity of applying for judicial review’. The members of Ward Hadaway,
and no doubt the directors of the applicant company, were naturally taken
aback. On August 12 Taylor & Emmet, the solicitors now acting for the
applicants,
the case. They followed that letter up two days later with a letter in which
they specifically referred to Ord 3, r5 and asked whether any application under
that rule had been made. Of course it had not. This is the first occasion upon
which there is any reference to Ord 3, r5 by any of those concerned.
The papers
were received by Taylor & Emmet from Ward Hadaway on August 20. The
following day they instructed counsel to advise in the matter. To complete the
history of events, the necessary pleadings were provided by counsel on August
28 1991, the intervening period between his being instructed and settling those
pleadings having been interrupted by a bank holiday weekend, and the
application was lodged on September 3, 70 days out of time.
Hodgson J, in
his judgment, having recited most of that chronology, said two things which
have been particularly stressed in the arguments now put before me by Mr
Straker on behalf of the appellants — or, I should say, ‘applicants’, since
they are applying for leave to appeal. One is on p 2 of the transcript where,
after referring to the letters of August 12 and 14 1991 written by Mr Taylor of
Taylor & Emmet, the judge said: ‘However, they did nothing until August 22
when they instructed fresh counsel’. The judge was not aware that in those
intervening eight days Taylor & Emmet had been waiting for the necessary
papers to come from Ward Hadaway. The learned judge also, at a later point in
his judgment, said: ‘. . . Even if I did exclude the delay which can be laid at
the door of counsel, I would still hold that the delay that happened after July
31 was sufficiently unexplained as to lead me not to exercise my discretion’.
In so far as that is a reference to the period after August 14, then no doubt
again note should be taken of the fact that he did not have the advantage of
knowing of the steps being taken by Taylor & Emmet from the middle of the
month onwards.
The fact
remains that there was a very long period before then in which those acting for
the applicants ignored or overlooked the requirements of section 289. The
arguments put before me by Mr Straker for saying that at least there is an
arguable case for setting aside the decision of Hodgson J are, first, that
Hodgson J was not referred to the merits of the appeal which the applicants
before me would like to bring. The explanation for that, says Mr Elvin, who
appeared before the learned judge, is that he was not referred to them by the
applicants. Ought he to have been? There
are cases, of course, in which the merits and the hardship done by a time-limit
having been overrun are of such weight that they can throw the balance in the
direction in which it would not otherwise have gone. But on the material before
me I can see no grounds for regarding this as such a case. The advice which the
applicants had received from counsel was not particularly encouraging and, if
it had been thought right that the substantial merits of the proposed appeal
should be put forward as a ground for extending time, there is no reason to
suppose that that would not have been done by counsel then representing the
applicants before the judge. We come back, I regret to say, to the fact that
there has here been a long and inexcusable delay, one which was justifiably so
regarded by Hodgson J.
exercised his discretion wrongly in refusing an extension of time. I would
take, and do take the same view. I must therefore refuse this application.
Application refused with costs.
