YADLY MARKETING CO LTD v SECRETARY OF STATE FOR THE HOME DEPARTMENT

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Solicitors:
For the appellant: Dylan Conrad Kreolle 
For the respondent: Government Legal Department

Counsel:
For the appellant: Arfan Khan, Tiki Emezie (Solicitor Advocate) 
For the respondent: James Chegwidden

YADLY MARKETING CO LTD v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2016)

[2016] EWCA Civ 1143

CA (Civ Div) (Arden LJ, Beatson LJ, Henderson LJ) 23/11/2016

CIVIL PROCEDURE – IMMIGRATION

APPEAL NOTICES : APPEALS : DELIVERY : EXTENSIONS OF TIME : IMMIGRATION POLICY : LIMITATION PERIODS : MISTAKE : OBJECTIONS : PENALTIES : PUBLIC HOLIDAYS : REQUIREMENT FOR NOTICE OF APPEAL TO BE DELIVERED TO COURT OFFICE, NOT JUST POSTED THROUGH LETTERBOX OF COURT BUILDING : WHETHER APPROPRIATE TO EXTEND TIME WHERE OFFICE CLOSED ON LAST DAY OF LIMITATION PERIOD : IMMIGRATION, ASYLUM AND NATIONALITY ACT 2006 s.15, s.16, s.17(4), s.17(6), s.5, s.15(3), s.16(1), s.16(2), s.16(4), s.16(4)(b), s.16(5)(c), s.16(5)(d), s.17, s.17(4)(b), s.19

A statutory limitation period for bringing an appeal such as that in the Immigration, Asylum and Nationality Act 2006 s.17(4) required delivery of the notice of appeal to the relevant court office, not merely posting it through the letterbox of the court building. That was not possible where the office was closed for the entire last day of the stated limitation period, so the appeal could be filed on the next working day.

The appellant appealed against a decision to strike out as out of time its notice of appeal against a civil penalty.

In March 2014 the secretary of state had issued a civil penalty notice, alleging that the appellant had employed workers whose immigration status did not permit them to be employed, contrary to the Immigration, Asylum and Nationality Act 2006 s.15. The appellant objected pursuant to s.16 and in response the secretary of state issued an amended notice, reducing the penalty. The notice stated the 28-day limit for bringing an appeal provided for in s.17(4) would end on 26 May 2014. That was a bank holiday, when the court offices were closed. The appellant made further representations in a letter of 21 May. On 27 May, it attempted to issue an appeal at its local county court, as s.17(6) provided. The court refused to accept the appeal on the mistaken basis that it should have been issued at an immigration tribunal. It again refused to accept the appeal the next day. The appellant posted the papers to another county court, where the appeal was lodged on 30 May. A judge struck out the appeal on the basis that the last day for filing it had been 26 May and there were no exceptional circumstances justifying an extension of time.

The appellant argued that the judge had erred in holding that the last day was 26 May: cases such as Kaur v S Russell & Sons Ltd [1973] Q.B. 336 and Mucelli v Albania [2009] UKHL 2 showed that where there was a statutory limit and the appeal could not be filed on what appeared to be the last day because the court was closed, Parliament must have intended that the appeal could be filed on the next working day. It also argued that time should have been extended, and that its 21 May letter was a second objection under s.16, which had the effect of extending time to appeal.

The secretary of state argued that it had been open to the appellant to file the notice on 26 May by posting it through the letterbox or sliding it under the door.

HELD: (1) Last day for filing: The effect of the secretary of state’s submission would either cut down the statutory limitation period or require appellants to take unusual steps on days when the court office was closed to secure the full benefit of the period. It did not follow from Van Aken v Camden LBC [2002] EWCA Civ 1724 that, where court offices were closed on the last day of the period, a person should be required to find a court building where it was possible to put the document through the letterbox or under the door, Van Aken considered. Encouraging or requiring such methods would produce uncertainty, there would be numerous practical difficulties, and it would risk the documents being mislaid, with all the difficulties of proof that would then confront the litigant. Parliament would not have intended an approach to depend on whether there was a means of getting a document into a particular court building when it was closed. There was a distinction between the court office and the court building: there was a difference between leaving documents in a drop box in the office, within the curtilage of the office and under the supervision of the appropriate staff, and methods such as putting the document through the letterbox. The Kaur approach only applied where the office was closed during the whole of the last day, Mucelli, Kaur and Aadan v Brent LBC [2000] C.P. Rep. 17 applied. What was required was delivery of the document to the court office itself, which was not possible where the office was closed for the entire last day of the limitation period. There was nothing in the particular context of s.17 to suggest that that general approach should not apply. The judge had erred in concluding that the period ended on the bank holiday (see paras 31-36 of judgment).

(2) Extension of time: The appellant had been entitled to file the notice the day after the bank holiday. It had thus attempted to file it at the county court within the time limit. It had done all it could within the time limit. The reason for its failure to do so was the error of the court official, not any failing on its part. The person affected could not be regarded as at fault because he had not filed the notice before the expiry of the number of days specified in the statute in such circumstances, Kaur applied. In the particular circumstances, the decision to use the post on the following day, rather than filing the notice personally, did not take the case outside the extremely narrow scope for departure from the statutory limit. The appellant had done all it could to issue the appeal in time, and the court’s error constituted exceptional circumstances justifying an extension of time (paras 39-41).

(3) Second objection (Obiter) The court was inclined to the view that it was not possible to raise a second objection under s.16. Objectors would be sufficiently protected by having the right to appeal against a second penalty notice (paras 42-43).

Appeal allowed

Counsel:
For the appellant: Arfan Khan, Tiki Emezie (Solicitor Advocate)
For the respondent: James Chegwidden

Solicitors:
For the appellant: Dylan Conrad Kreolle
For the respondent: Government Legal Department

LTL 23/11/2016 : [2017] CP Rep 12 : [2017] 1 WLR 1041 : [2017] Imm AR 701

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