Category Archives: Commercial & Public Law

COURT OF APPEAL ALLOWS ASPECT OF APPEAL IN COMMITAL FOR CONTEMPT OF COURT CASE

Commercial & Public Law, Committal, Property litigation

Isaac Smith v Network Holmes Ltd [2022] EWCA Civ 1631

The Court of Appeal (Lord Justice Stuart Smith, Lord Justice Birss and Lord Justice Edis) gave guidance when considering the correctness of a decision to commit the Appellant to prison for contempt of Court.

The Appellant, Isaac Smith, is physically disabled. The Equality Act 2010 Considerations & Proportionality Assessment Form dated June 2021 noted that he spent most of his time in the living room due to his disability and played music to manage the quality of his life. Following complaints from neighbours, including an allegation of a threat of violence, the Court granted an injunction to his landlord, Network Homes Ltd, pursuant to the Anti-Social Behaviour Crime and Policing Act 2014. Network Homes Ltd sought an order for committal based on various alleged breaches of the injunction. The Deputy District Judge found 9 of the 10 breaches of the injunction proved and sentenced the Appellant to a 12-week custodial sentence suspended for a period of 12 months.

The Court of Appeal allowed the appeal on this aspect of the appeal by reducing the sentence to a one-month custodial sentence suspended for the same period. The Court of Appeal proceeded to provide the following guidance:

1.The principle of open justice serves to emphasise that judgments involving committal for contempt of Court must be transcribed and published. The judge giving the judgment also bears responsibility to ensure that the Court staff are aware of the judgment after it is published, so that they can take the appropriate steps. A failure in the audio system is not a good reason for at least publishing a note of the sentence. The Court held that there was a serious irregularity in that the Deputy District Judge’s judgment had not been transcribed and placed on the judiciary website at the proper time, contrary to CPR r81.8(8). However, the Court held that this was not sufficient to allow the appeal.

2.In the absence of a possession claim under Part 55 (it being accepted that there was no possession proceedings before the Deputy District Judge), the contempt jurisdiction did not entail consideration of a mandatory ground for possession under s.84A of the Housing Act 1985 as an alternative to committal. An order for possession is not another penalty (along with a custodial sentence or a fine) which the Court can consider in the context of sentencing for contempt on an application for committal under Part 81. It is a remedy available under the Housing Act. Given that there was no application for possession before the Deputy District Judge, he could not be faulted for not taking it into account.

3.There was no dispute that under s.16 of LASPO 2012, the Court of Appeal, as the relevant authority, can make a representation order covering the appeal: Devon County Council v Kirk [2017] 4 WLR 36 at paragraph 52 and Re O (Committal): Legal Representation [2019] 4 WLR 140at para 2 and 4.

Arfan Khan appeared for Mr Isaac Smith and did not appear below. The judgment can be accessed here: https://www.bailii.org/ew/cases/EWCA/Civ/2022/1631.html

 

ARFAN KHAN SUCCESSFUL IN ESTABLISHING THE CORRECT TEST IN INDEFINITE LEAVE APPEAL

Akinola, Commercial & Public Law, Practice - Court of Appeal, Public Law - Court of Appeal, Uncategorized, , , , , , , , ,

Leave to remain: R (Akinola) v Upper Tribunal (Secretary of State for the Home Department interested party) [2021] EWCA Civ 1308 (Court of Appeal: Lord Justice Philips, Lord Justice Stuart Smith and Sir Stephen Richards)

The Court of Appeal has delivered a guidance decision in three cases on the interpretation and effect of s.3C of the Immigration Act 1971 in indefinite leave to remain cases.

The requirement that an applicant satisfy the 10 years lawful residence before applying for indefinite leave to remain is contained in Rule 276B of the Immigration Rules.

The purpose of s.3C leave is to protect the immigration status of those with existing leave pending the determination of a variation application or appeal in respect of that decision. It is framed to prevent an abuse of the system by permitting one application for variation. It provides that leave is extended during any period where:

“(a) the application for variation is neither decided nor withdrawn,

(b) an appeal under section 82(1) of the Nationality, Asylum and Immigration Act 2002 could be brought, while the appellant is in the United Kingdom against the decision on the application for variation (ignoring any possibility of an appeal out of time with permission), or

(c) an appeal under that section against that decision, brought while the appellant is in the United Kingdom, is pending (within the meaning of section 104 of that Act)” (emphasis added in italics).

The appeals concerned the effect of section 3C on (i) an appeal out of time for which an extension of time is granted, and (ii) a withdrawal and/or reconsideration of a refusal decision.

The principal question in dispute was whether leave revived with future effect or retroactively, so as to run continuously from the time when it otherwise expired at the end of the period in section 3C(2)(b) (§ 48).

On appeal to the Court of Appeal, the SSHD introduced a new policy based on the reasoning of the Upper Tribunal in R (Ramshini) v Secretary of State for the Home Department dated 31 July 2019 (JR/2156/2019). In Ramshini, relying upon the Court of Appeal decision in R (Erdogan) v Secretary of State for the Home Department [2004] EWCA Civ 1087, the Upper Tribunal held that an appeal is instituted under s.104 of the Nationality Immigration and Asylum Act 2002 when permission to appeal is granted out of time. As a result, in so far as material, the new policy of the SSHD (v.10) provided that s.3C leave revived prospectively from the date permission to appeal was granted, as opposed to retrospectively.

The Court of Appeal held that it was common ground that an out of time appeal for which an extension of time is granted engages section 3C (2) (c) as a pending appeal and results in a revival of s.3C leave (§ 48). It held that the linguistic considerations pre Ramshini, which sought to avoid the retroactive application of s.3C to out of time appeals, were not sufficient to cause it to challenge the common ground that section 3C (2) (c) can apply to an out of time appeal for which an extension of time is granted.

On Akinola’s challenge to the analysis of the Upper Tribunal’s decision in Ramshini, the Court of Appeal held that section 3C had retroactive effect from the date the Appellant’s notice is filed under rule 19 and 20 of the 2014 Rules, and not from the date that the Court extends time for appeal, as held in Ramshini (and adopted in the new policy of the SSHD). The Court of Appeal held that Ramshini was wrongly decided in so far as it relied on the decision in Erdagon: 

“[47]. The Secretary of State now accepts the approach in Ramshini and has changed her section 3C guidance to reflect it in the current version 10.0. Accordingly Ms Giovanetti QC, on behalf of the Secretary of State, accepted before us that an appeal out of time for which an extension of time is granted does cause leave to revive by virtue of section 3C(2)(c) but submitted that it does so only with future effect from the date when the extension of time is granted. On the other hand Mr Khan and Mr Hawkin, for Ms Akinola and Mr Alam respectively, took the approach in Ramshini one step further, submitting that when section 3C(2)(c) is engaged by an appeal out of time for which an extension of time is granted, it extends the section 3C leave with retroactive effect so as to make that leave continuous from the end of the period in section 3C(2)(b) when it otherwise expired. As a subsidiary challenge to the analysis in Ramshini, Mr Khan argued further that where an extension is granted for an appeal out of time, the appeal is instituted when the notice of appeal is filed, not when the extension of time is granted, and that it is therefore pending for the purposes of section 3C(2)(c) from the time when the notice of appeal is filed.

[48]. It is therefore common ground that an out-of-time appeal for which an extension of time is granted engages section 3C(2)(c) as a pending appeal and results in a revival of the section 3C leave. The principal question in dispute is whether that leave revives only with future effect or does so with retroactive effect so as to run continuously from the time when it otherwise expired at the end of the period in section 3C(2)(b).  I have found that a difficult question. There are substantial pointers in each of the two directions canvassed in argument before us, but also in the direction of the position as widely understood prior to Ramshini…

[59]. The UT in Ramshini, citing R (Erdogan) v Secretary of State for the Home Department [2004] EWCA Civ 1087, held that an appeal is instituted at the point when the FTT grants permission to appeal out of time, i.e. when the FTT decides to extend time for appealing. The Secretary of State has again accepted that position. Mr Khan submitted, however, that the decision in Erdogan is distinguishable and that on proper analysis an out-of-time appeal is instituted when the notice of appeal is filed, even though the existence of a valid appeal from that date will depend on the later grant of an extension of time.

[63]. Given the different wording of the primary legislation and the rules in force at the time, and the extent to which Newman J’s reasoning was based on such wording, the judgment in Erdogan case appears to me to be distinguishable and to provide no real assistance in determining when an appeal out of time is instituted in accordance with the legislative regime that governs the present cases. In distinguishing Erdogan on a different issue in R (Secretary of State for the Home Department) v Immigration Appeal Tribunal [2004] EWHC 3161 (Admin), Collins J noted at [44] that “the Rules did not at that stage provide for an appeal to exist in circumstances where there was an application to the Tribunal out of time”. 

[64]. Accordingly, the UT in Ramshini was in my judgment wrong to rely on Erdogan on this issue and wrong to reach the conclusion it did on the issue.  In my judgment, for the reasons given above, where an extension of time is granted for an appeal out of time, the date when the appeal is instituted and becomes a pending appeal within section 3C(2)(c) is the date when the notice of appeal was filed, not the date when the extension of time was granted. That involves the acceptance of an element of retroactivity, in that where the grant of an extension of time post-dates the filing of the notice of appeal it causes leave to revive from the earlier date when the notice of appeal was filed.  In this case, however, it seems to me to be the clear result of the relevant legislative provisions”.

Whilst the Court refused permission to appeal in Akinola, and dismissed the other two appeals, the Court of Appeal certified Akinola as a case which can be cited in other cases under Practice Direction para 6.1.

ARFAN KHAN appeared for Akinola instructed by DCK Solicitors.

The judgment can viewed here:

https://www.bailii.org/ew/cases/EWCA/Civ/2021/1308.html

 

 

 

 

 

ARFAN KHAN and KATHERINE ARCHER succeed in establishing the correct test to be applied to sexual misconduct appeals under s.40 of the Medical Act 1983

Appeal, Appeals by professionals, Commercial & Public Law, Court of Appeal decision, Disciplinary tribunals, Sexual misconduct by professionals, , , , ,

ARFAN KHAN and KATHERINE ARCHER succeed in establishing the correct test to be applied to sexual misconduct appeals under s.40 of the Medical Act 1983

On 30 April 2021, in Okpara & Anor v General Medical Council [2021] EWCA Civ 623, the Court of Appeal (Macur, Davies and Lewis LJJ) ruled on the correct test to be applied by the High Court in appeals brought by doctors pursuant to s.40 of the Medical Act 1983, particularly in sexual misconduct appeals. The Court held that the High Court (Administrative Division) had applied the wrong test.

Following a two-day appeal, and a reserved judgment, the Court of Appeal held (Nicola Davies LJ giving the judgment of the court), that there was a line of authority, reflected in Jagjivan which indicates that cases of sexual misconduct fall within a category where an appeal court can more readily assess whether a particular sanction is appropriate and thus give less weight to the expertise of the Tribunal. The Court endorsed that line of authority and held that the High Court had erred in following Bawa-Garba v General Medical Council [2019] 1 WLR 1929 in this sexual misconduct case:

[91] Counsel on behalf of Dr Okpara identifies a tension between the sexual misconduct cases referred to in Jagjivan, which permit the appellate court to decide issues of weight for itself without deferring to the expertise of the Tribunal, and the approach in Bawa-Garba, where the court defers to the expertise of the Tribunal by adopting a restrictive error of principle approach on appeal, akin to a review rather than a rehearing. It is this tension which Leggatt LJ was referring to when granting permission to appeal. 

[113] …We conclude that the judge, in following Bawa-Garba in this case, did fail to have regard to the line of authority reflected in Jagjivan …We agree that in matters such as dishonesty or sexual misconduct, the court is well placed to assess what is needed to protect the public or maintain the reputation of the profession and is less dependent upon the expertise of the Tribunal.  It follows that we find that the approach of the judge to the sanction imposed upon Dr Okpara was wrong in that he did not assess whether the sanction was necessary or appropriate in the public interest or was excessive or disproportionate. 

Applying Ghosh v General Medical Council [2001] 1 WLR 1915 and Khan v General Pharmaceutical Council [2017] 1 WLR 169, the Court of Appeal held that the test on s.40 appeals was whether the sanction imposed by the Medical Practitioners Tribunal was “wrong” and that the approach at the hearing, which was appellate and not supervisory, was whether the sanction imposed was appropriate and necessary in the public interest or was excessive and disproportionate. The appeals under s.40 are by way of a rehearing, rather than review, and it is not sufficient for intervention to turn on the more confined grounds of public law review such as irrationality.

The Court proceeded to consider the sanction afresh. It upheld the High Court on the sanction of erasure.

The full Judgment is available here.

ARFAN KHAN and KATHERINE ARCHER, instructed by DCK Solicitors, acted for the second appellant Dr Okpara, who succeeded in establishing the correct test to be applied by the High Court in a sexual misconduct appeal pursuant to s.40 of the Medical Act 1983.