The Court of Appeal (Civil Division) has granted permission to appeal on the papers in a second appeal in Okpara v General Medical Council [2019] EWHC 2624 (Admin). The appeal raises an important point of principle regarding whether sexual misconduct appeals fall within a category where an appeal court can more readily assess whether a particular sanction is appropriate and thus attach less weight to the expertise of a tribunal.
Arfan Khan acted for the successful Appellant.
Arfan Khan led Mr Joseph Howard in the Court of Appeal on a first time tax appeal of general public importance.
The Appellant is an Italian company. It provides containers and logistics services across Europe. The Appellant arranged the transport of goods for a customer, a Romanian company, GBT. This included a quantity of wine, which was seized by UK Border Force on the basis that excise duty had not been paid.
On 12 May 2015, HMRC issued an assessment to excise duty in respect to the seized wine to GBT. On 17 December 2015, HMRC issued the appellant with a reduced penalty assessment calculated on the basis that the Appellant’s conduct was not deliberate.
The Appellant appealed to the FTT on the basis that Article 37 of Directive 2008/118/EC (“the Excise Duties Directive”) meant that as the wine had been lawfully seized and destroyed, no excise duty point ever arose, the appellant was an innocent agent, and the penalty assessment was out of time. The FTT dismissed the appeal.
The Appellant appealed to the Upper Tribunal. The Upper Tribunal granted permission to appeal. However, it dismissed the appeal holding that Article 37 did not apply. The Appellant applied directly to the Upper Tribunal for permission to appeal to the Court of Appeal. Arfan Khan was then instructed and led a written skeleton argument for permission to appeal to the Court of Appeal.
The Upper Tribunal exceptionally granted permission to appeal against its own decision on the Article 37 ground. It held that the appeal raised a point of general public importance in respect of which there were real prospect of success.
The Respondent filed a Respondent’s notice seeking to uphold the Upper Tribunal on the basis that excise duty was chargeable by reason of a deemed duty point following the reasoning in Jones v HMRC, and that Article 37 did not as a result apply.
The Respondent’s notice proceeded contrary to what was alleged to be written concessions made by the Respondent. It was alleged that the Respondent had conceded before the Upper Tribunal that the basis of seizure did not necessarily require duty points to arise where the goods had been lawfully seized, and there was no challenge to the legality of the seizure.
Following the grant of permission, the Appellant filed supplemental submissions in response to the Respondent’s notice. These included a novel submission, not considered in Jones v HMRC, namely that, if the statutory deeming provisions apply to bar jurisdiction, they should be set aside in order to give effect to Article 37 of the EC Directive and Article 47 of the EU Charter and/or declared incompatible with Article 6 of the ECHR. The supplemental submissions distinguished the decision in Jones.
The Court of Appeal (Lord Justice Patten, Lord Justice Baker, and Mr Justice Mann) dismissed the appeal holding:
“50. As Mr Khan and Mr Howard on behalf of the appellant accepted in the course of the hearing before us, unless Article 37 subsequently disapplied its effect, there can be no doubt that the provisions of Article 33 were satisfied. The wine in the fifth container had been “released for consumption” in Italy. At the point of arrival at Purfleet, it was being “held for commercial purposes … in order to be delivered here”. Accordingly, it was subject to excise duty here and excise duty became chargeable here. At that point, under regulations 5 and 6 of the HMDP Regulations, an “excise duty point” arose and the appellant, being a person “concerned in carrying … the goods”, became liable to a penalty under paragraph 4 of schedule 41 to the Finance Act 2008.
51. Did Article 37 apply so as to prevent excise duty being chargeable on the wine? In my judgment, it did not, for the reasons identified by the UT at paragraphs 61 to 71 of its decision. …
52. In the context of this appeal, the construction of Article 37 turns on two phrases: (1) “during their transport in a Member State” and (2) “as a consequence of authorisation by the competent authorities of that Member State”.
53. I agree with the UT that “transport” should be given its ordinary meaning. For my part, I derive no assistance by comparing and contrasting the use of the word “movement” in Article 38. The wine in the appellant’s container was being transported from the ship to its ultimate destination in the UK. Had it continued on its journey, it would have been “transported” until it reached its destination. But it did not continue on its journey. It was seized by Border Force and held by that agency until it was destroyed following forfeiture. At the time of its destruction, it was not being “transported”.
54. As for the second phrase, I do not accept the submission that the ultimate destruction of the wine by or on behalf of Border Force following forfeiture falls within the scope of the phrase “as a consequence of authorisation by the competent authorities”. The destruction of the wine following forfeiture took place on the orders of Border Force. The word “authorisation” means the granting of official permission. The plain and obvious purpose of including that phrase in Article 37 is to cover the destruction of goods which are partially, but not totally, destroyed in transit. Article 7(4) provides that, for the purpose of this Directive, goods shall be considered totally destroyed or irretrievably lost when they are rendered unusable as excise goods. But there will be other cases where the goods are substantially damaged while being transported but have not become totally unusable (for example, where a proportion of a consignment of wine bottles are broken but the remainder are intact). Article 37 allows for circumstances where the competent authorities may formally agree to the destruction of the remainder so as to remove them from the scope of the duty”.
The Court of Appeal held that the Respondent’s notice had become academic by reason of the Appellant’s concession on appeal as follows:
“63. I would be reluctant to embark on a lengthy analysis of HMRC’s alternative argument raised in its respondent’s notice based on its interpretation of the decision in Jones. I take that view for three reasons. First, as I have just concluded, I consider the UT’s decision as to the construction of Article 37 was correct. On behalf of the appellant, Mr Khan in effect accepted at the outset of the hearing before us that, subject to its being subsequently removed by Article 37, an excise duty point arose under Article 33, and it must have persisted. The two factors which HMRC are seeking to have “deemed” from the failure of the appellant to contest the condemnation of the wine – that excise duty was chargeable and an excise duty point had arisen – are therefore conceded by the appellant. The “deemed duty” point is therefore of academic interest only in this appeal..”.
As a result, and amongst other reasons, the Court of Appeal refused to offer any expansive dicta on the Respondent’s notice. However, it concluded that the Upper Tribunal’s comments on the interpretation and application of the decision in Jones (based on the Respondent’s concession below) should not be regarded as authoritative. The Court of Appeal did not permit the Respondent to resile from what the Upper Tribunal described as a concession. It left open the possibility of argument in future cases.
Arfan Khan has a specialist appellate practice in Chancery, Commercial and Public law. He also has a substantial litigation practice in Chancery, Commercial and Public law. He is an experienced pleader, as evident from his numerous reported cases at appellate level, as well as in the High Court both as a leader and sole counsel.
The Court of Appeal judgment can be access here:
https://www.bailii.org/ew/cases/EWCA/Civ/2020/405.html
This was a second appeal to the Court of Appeal against a decision of the Upper Tribunal. The appeal raised an important point of law regarding the nature and scope of the First Tier Tribunal’s jurisdiction to reduce Industrial Injuries Disability Benefit (IIDB) on appeal under s.12 of the Social Security Act 1998.
The First Tier Tribunal reduced the Appellant’s industrial injuries benefit to 5% when, based on medical evidence, the Respondent confirmed that the degree of the Appellant’s disablement was 36%. The Respondent stood by that assessment in its mandatory reconsideration decision. Nevertheless, the FTT reduced the IIDB exercising its inquisitorial jurisdiction. Based on authority, it was said that the FTT possessed jurisdiction under s.12 8 (a) of the Social Security Act 1998.
The Upper Tribunal Judge Hemingway upheld the FTT. He concluded that the issue for appeal was the correctness or otherwise of the assessment generally, rather than whether or not either the 36% percentage was correct, or too low.
The Appellant appealed to the Court of Appeal. Lord Justice Newey granted permission to appeal on the basis that there was point of general public importance regarding the jurisdiction of the FTT in respect to which the Appellant had real prospects of success.
The matter came before the Court of Appeal who adjourned the appeal for the Appellant to be represented by Counsel. Arfan Khan was then instructed to lead the appeal, and produced a Replacement Skeleton. This identified a novel statutory scheme, not applied or considered in any of the cases in this area. It contended that the issue of jurisdiction fell to be determined through the statutory scheme by looking at the substance of the appeal, and that the inquisitorial jurisdiction of the tribunal did not extend to looking at issues which are not raised through this jurisdictional gateway. The authorities relied upon by the Respondent were not on point. But could be read consistently with the statutory scheme.
The Respondent filed a Supplemental Skeleton argument on 15/11/2019 (Friday), which was met by a Reply skeleton from the Appellant on 16/11/2019 (Saturday). The Respondent proceeded to compromise the appeal by signing a consent order on the morning of the appeal hearing. It did so by agreeing, amongst other matters, to pay the Appellant’s IIDB for the relevant period at 36%, and the Appellant’s costs to be assessed if not agreed.
Lady Justice Rafferty, Lady Justice King and Lord Justice Richards approved the consent order at an oral hearing. As a result, the appeal was withdrawn. But in response from some probing questions from the Court of Appeal bench, the Respondent agreed to place a notice on its website to the effect that, the decision of M R Hemingway Judge of the Upper Tribunal in Fowler v Secretary of State for Work & Pensions, is not to be relied upon as persuasive authority in future cases.
The Appellant, a former solicitor, claimed he held a beneficial interest in property by way of constructive or resulting trust. The property was purchased as an investment. It was registered in the sole name of the Appellant’s wife. A joint charge was placed over the property by the Legal Services Commission. This was done in order to secure the joint indebtedness of the Appellant and his wife arising out of their legal practice as solicitors.
The Court at first instance held that the Appellant was not entitled to a beneficial interest in the property by way of constructive or resulting trust, and that the property vested in the wife’s joint trustees in bankruptcy.
The Appellant appealed. Permission to appeal was refused on the papers by the Honourable Mr Justice Snowden. The Appellant renewed permission to appeal on the issue of whether he had a beneficial interest in the property. Following an oral hearing in the Business & Property Courts of England & Wales (Chancery Appeals), the Honourable Mr Justice Snowden was ‘persuaded’ to grant permission to appeal limited to that issue without expressing a concluded view on the merits of the appeal.
The appeal raises evidential issues concerning the correctness of the first instance judge’s findings of fact on the Appellant’s beneficial interest in investment property in light of the LSC charge, and all the relevant circumstances.
The appeal also seeks to establish a novel point of law in sole ownership cases involving the determination of beneficial interest in property. Namely where property is purchased as an investment, in the absence of an express direction by the Privy Council that its decision in Marr v Collie [2018] AC 631 represents the law of England and Wales, the Courts at first instance are bound to follow the Court of Appeal decision of Lord Neuberger to the contrary in Laskar v Laskar [2018] 1 WLR 2695.
This is consistent with higher authority, including the reasoning of the Supreme Court in Willers v Joyce [2018] AC 851 concerning the procedure in the Privy Council for holding that a Court of Appeal decision is wrong. This involves expressly making a decision that the Court of Appeal is wrong, and directing that the domestic courts should treat the Privy Council decision as representing the law of England and Wales. Marr does not expressly appear to overrule Laskar. Nor does it appear to contain the direction in question.
Arfan Khan represented the Appellant and did not appear below.
The Claimant claimed that the Defendant had played sound recordings, which infringed copyright in relation to two songs, contrary to s.16 of the Copyright & Patents Act 1988 (“the CPDA”). The Claimant obtained summary judgment on its claim in the absence of the Defendant who was acting as a litigant in person. Following enforcement, the Defendant applied to set aside summary judgment. The Master refused to set it aside using CPR 39.3 (5) as a guide.
The Defendant appealed contending that
1. The Master’s approach to the principles applicable to setting aside an order for summary judgment obtained in the absence of a party was wrong, in that he had applied the test for setting aside judgment after a trial, which was not the right approach. The defence had real prospects of success because the defendant had authorised the playing of music in the restaurant, but he had not authorised the infringement of copyright.
2. He had no control over whether independent DJ’s played music infringing the copyright;
3. There were other reasons why this matter ought to go to trial, including the fact that it was inappropriate to conduct a mini trial at the summary judgment. (§ para 9 of the Judgment).
Miss Penelope Reed QC sitting as a Judge of the High Court Chancery Division held:
1. There was some force in the first argument, and it ought to be easier to set aside summary judgment orders in appropriate circumstances (§ para 13).
2. The Court should take into account other rules of the CPR which provide that judgments can be set aside such as judgments in default under CPR r 13 (§ para 14).
3. It was not inappropriate to take into account considerations set out in CPR r 39.3 (5). However, the Judge held that those considerations ought not to be too rigidly applied in circumstances where there has been no trial (§ para 14). There may be other relevant considerations, including whether there are other reasons why the matter ought to be tried (§ para 15).
4. The Master had used CPR r 39.3 (5) as a guide. Whilst another Judge may have taken a different view on the issue of whether the Appellant acted promptly, the Master could not be criticised for finding that the application had been made late. The Master had not erred (§ para 18).It is the authorisation of the playing of music in public which is relevant within the meaning of s.16 of the CPD 1988, and not the authorisation of specific songs which infringe copyright (§ para 28).
5. Amstrad could be distinguished on the basis that there was no control over use to which their equipment was put, whereas the Appellant had complete control over the playing of music in his premises (§ para 28).
6. DJ’s did not exceed the nature of the authority conferred upon them. Therefore, the Master’s decision was not at odds with the law of agency (§ 29).
7. There were no real prospect of success at trial and permission ought to be refused (§ para 30).
The Judgment can be accessed here:
http://www.bailii.org/ew/cases/EWHC/Ch/2018/1327.html
Judgment: Phonographic Performance Ltd
Arfan Khan argued the case on behalf of the Defendant, instructed by DCK Solicitors. He did not appear below.
Loson v Brett Stack & Anor [2018] EWCA Civ 803; Times, April 26, 2018
On 26/8/2016, the Court of Appeal granted Mrs Diana Loson permission to appeal on a second appeal.
On 17/4/2018, the Court of Appeal determined the appeal. It provided guidance on the correct test to vary a judgment debt under CPR r 40.9A.
The Court of Appeal rejected the contention that the test to vary a judgment debt under CPR r 40.9A is one of exceptional circumstances.
The Court of Appeal, however, provided further guidance to the Courts on the circumstances in which a creditor can enforce a judgment debt, and a debtor is entitled to payments by instalments.
On the basis of this guidance, the Court of Appeal set aside the order made by the learned District Judge.
On 2 May 2018, Mrs Diana Loson filed a petition with the United Kingdom Supreme Court, seeking leave to appeal against the Court of Appeal’s guidance. A decision is now pending.
Arfan Khan was instructed throughout the Court of Appeal proceedings, and is now instructed on appeal to the Supreme Court. He did not appear in the proceedings below.
The decision of the Court of Appeal can be accessed here:
http://www.bailii.org/ew/cases/EWCA/Civ/2018/803.html
The Applicants appealed a decision of the Upper Tribunal refusing to grant permission to appeal a costs decision made in judicial review proceedings.
The Upper Tribunal refused permission to appeal by applying the second appeals test referred to in section 13(6) of the Tribunals, Courts and Enforcement Act 2007.
The Applicants appealed on the error of law ground.
Sir Kenneth Parker ordered an oral permission to appeal hearing.
In relation to the point of principle, Lord Justice Peter Jackson and Lord Justice Singh held that, based on the relevant statutory provisions, in judicial review claims heard by the Upper Tribunal, rather than on appeal from the First Tier Tribunal, the test for an appeal to the Court of Appeal was the first appeal test in part 52, not the second appeals test. Both rejected the Respondent’s attempt to create an elevated threshold test for the grant of permission to appeal. As the Court of Appeal held § para 77:
“the test for an appeal to the Court of Appeal from the UT in cases of this kind, which are claims for judicial review heard by the UT exercising its original jurisdiction rather than appeals from the FTT, is the first appeal test and not the second appeal test. The UT erred in applying the second appeal test”.
Applying the first appeals test, the Court of Appeal dismissed the application for permission to appeal the costs order on the basis that the costs decision of the Upper Tribunal was correctly made. However, the Court of Appeal certified that the decision may be cited in other cases in satisfaction of para 6.1 of the Practice Direction (Citation of Authorities).
Arfan Khan appeared for the First Applicant whose submissions were successful on the point of principle, which led the Respondent to concede the same in a skeleton and at the oral hearing following the service of Replacement Grounds of Appeal on behalf of the First Applicant. Arfan Khan also successfully resisted the Respondent’s application for costs. The Court of Appeal did not make any costs orders.
Arfan Khan was instructed by Dylan Konrad Kreolle Solicitors on appeal to the Court of Appeal, and did not appear in the proceedings below. The Court of Appeal judgment can be accessed through the following links:
http://www.bailii.org/ew/cases/EWCA/Civ/2018/5.html
Nwankwo Judgment (PDF)
Supreme Court of the United Kingdom
Lord Sumption (with whom Lord Neuberger, Lady Hale, Lord Clarke and Lord Wilson agree), dismissed the appeal of the Secretary of State for the Foreign and Commonwealth Office and affirmed an order of the Court of Appeal. In summary, the Supreme Court held:
(1). To determine customary international law, complete state uniformity is not required, but substantial uniformity is. This was evident from Brownlie’s Principles of Public International Law, 8th ed (2012), 24, which accords with all the authorities (§ 31).
(2). It is necessary to establish that there is a widespread, representative and consistent practice of states on the point in question, which is accepted by them on the footing that it is a legal obligation (opinio juris) (§ 31).
(3). It is necessary to ask what is the relevant rule of international law by reference to which Article 6 must be interpreted (§ 33). The law requires the Court to measure sections 4 (2) (b) and 16 1 (a) against the requirements of customary international law, something that cannot be done without deciding what those requirements are (§ 35). The SSFCO’s argument that article 6 of the Human Rights Convention is satisfied if the rule of the forum state “reflects” generally recognised principles of international law, and that it was not necessary to show that international law requires a state to be immune, was misconceived. The distinction between “reflects ” and “requires” was a purely semantic one. (§ para 33-34).
(4). There was no rule of customary international depriving the employment tribunal of its jurisdiction to hear employment claims of a non-sovereign nature. Article 6 was engaged through a refusal to exercise that jurisdiction. The jurisdictional issue raised by Lord Millett in Holland v Lampen-Wolfe and by Lord Bingham and Lord Hoffmann in Jones v Saudi Arabia did not arise. (§ 75).
(5). There is no international consensus sufficient to found a rule of customary international law corresponding to section 16 1 (a) of the State Immunity Act 1978 (§ 73).
(6).Section 4 (2) (b) of the State Immunity Act 1978 is not justified by any binding principle of international law (§ 67).
(7). The rule of customary international law is that a state is entitled to immunity only in respect of acts done in the exercise of sovereign authority (§37).
(8). The State Immunity Act 1978 can be regarded as giving effect to customary international law only so far as it distinguishes between exercises of sovereign authority and acts of a private law character, and requires immunity to be conferred on the former but not the latter (§ 63). There is no basis in customary international law for the application of state immunity in an employment context to acts of a private law character (§ 63).
(9). It is evident from a history of state immunity that there has probably never been a sufficient international consensus in favour of the absolute doctrine of immunity to warrant treating it as a rule of customary international law (§ 52). The only consensus that there has ever been about the scope of that immunity is the consensus in favour of the restrictive doctrine (§ 52).
(10). In so far as sections 4(2)(b) and 16(1)(a) conferred immunity, they were incompatible with art 6 of the Human Rights Convention, and art 47 of the Charter of Fundamental Rights of the European Union (§ 76).
(11). Section 4 (2) (b) unquestionably discriminates on grounds of nationality. The denial of access to justice is unjustifiable whether discriminatory or not (§ 77).
(12). The scope of article 47 of the Charter is not identical to that of article 6 of the Human Rights Convention (§ 78).
(13). In so far as claims fell within the material scope of EU law, the relevant provisions were disapplied (§ 78-79).
Arfan Khan was instructed as lead Counsel for 4A Law Public Interest Lawyers Ltd, and successfully upheld the Court of Appeal judgment through written submissions on the above points following the grant of permission to intervene by the Supreme Court. Permission to intervene was opposed.
The official Supreme Court judgment can be viewed through the following link in full: https://www.supremecourt.uk/cases/docs/uksc-2015-0063-judgment.pdf. It is the only authoritative source and should be read in full. The relevant parties and their legal representatives are recorded at page 2 of the judgment.
Arfan Khan leads the 4A Law written intervention submissions in the United Kingdom Supreme Court. The intervention concerned a landmark State Immunity appeal. The Court of Appeal set aside the State Immunity Act 1978 in order to give effect to Article 47 of the EU Charter. It declared the State Immunity Act 1978 incompatible with Article 6 of the ECHR. In the Court of Appeal, Arfan Khan appeared as lead Counsel for 4A Law. On appeal to the Supreme Court, Arfan Khan led for 4A Law and secured permission to intervene, which was opposed. Thereafter written submissions were filed. Amongst other issues, these submissions addressed the application of Article 6 of the ECHR, Article 47 of the EU Charter, customary international law (including the test for identifying the same), procedural and substantive bars, absolute/restrictive immunity, and the application of these principles to employment claims falling within the material scope of EU law. The Supreme Court judgment has been reserved. The substantive hearing can be viewed through the Supreme Court website, where Arfan Khan was instructed to appear in the context of the 4A Law written submissions:
https://www.supremecourt.uk/watch/uksc-2015-0063/060617-pm.html
Justices
Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson, Lord Sumption.
Judgment appealed:
[2015] EWCA Civ 33:
Parties
Appellants
Secretary of State for Foreign and Commonwealth Affairs
[Libya]
[Embassy of the Republic of Sudan]
Respondent
[Ms Fatima Ahmed Benkharbouche]
Ms Minah Jonah
Interveners
The AIRE Centre
4A LAW Public Interest Lawyers Ltd
From the Supreme Court website:
“Issue
Whether granting immunity from suit under the State Immunity Act 1978 engages, and breaches, the Respondents’ rights under the European Convention on Human Rights (ECHR) and EU Charter.
Facts
Ms Janah was employed as a member of the domestic staff at the Libyan Embassy in London. Ms Benkharbouche was employed in the Sudanese Embassy. Following dismissal from their employment, the claimants issued claims in the Employment Tribunal. Libya and Sudan claimed immunity from suit under the State Immunity Act 1978. The claimants responded that barring their claims would breach Article 6 and/or Article 14 of the ECHR and/or Article 47 of the EU Charter. The Court of Appeal accepted the claimants’ arguments, making a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998 and disapplying the State Immunity Act 1978 in respect of the elements of the claims within the scope of EU law. The Secretary of State was joined to proceedings at the Court of Appeal stage as entitled under section 5 Human Rights Act 1998”.
Arfan Khan was instructed as lead Counsel and led on the appeal to the Court of Appeal. The appeal was allowed. The case is reported as Yadly Marketing v Secretary of State for the Home Department [2016] WLR (D) 621; [2016] EWCA Civ 1143.
The full judgment can be accessed online here or by clicking the PDF link below:
http://www.bailii.org/ew/cases/EWCA/Civ/2016/1143.html
Yadly v Secretary of State pdf
In so far as material, the case summary reported in the [2016] WLR (D) 621 reads as follows:
“Yadly Marketing Co Ltd v Secretary of State for the Home Department [2016] EWCA Civ 1143
Arden, Beatson Henderson LJJ
| 2016 Nov 8; 23 |
Practice — Documents — Filing — Penalty notice issued in respect of overstaying employees — Last day for filing appellant’s notice falling on public holiday when court office closed — Appellant’s solicitor filing notice day after — Whether statutory language to be construed as granting an extra day — Immigration, Asylum and Nationality Act 2006 (c 13), s 17(4)
The Home Office’s Civil Penalty Compliance team issued a civil penalty notice on the employer pursuant to section 15 Immigration, Asylum and Nationality Act 2006 in respect of employees who were working without appropriate leave. The employer filed a notice of objection under section 16. The Secretary of State issued an amended notification of liability on 25 April 2014, in which it was stated that, under section 17(4) of the 2006 Act, any appeal had to be brought on or before 26 May 2014, which in fact was a bank holiday Monday when the court offices were closed. On 27 May 2014 the employer attempted to issue an appeal at a county court which wrongly refused to accept it. A further attempt to issue the appeal was again wrongly refused on 28 May. The employer then posted an appellant’s notice to a different county court and the appeal was lodged on 30 May 2014. When the case was listed for appeal the Secretary of State applied for the appellant’s notice to be struck out as out of time. The judge allowed the Secretary of State’s application, determining that there was no provision in the 2006 Act for an extension of time for appealing, that CPR r 2.8(5) did not apply to statutory time limits and that the delay between the rebuff received at the county court on 27 May and the papers arriving at a different county court on 30 May indicated that the employer had not done all it could to bring the appeal within the prescribed time limit and therefore there were no exceptional circumstances justifying a time extension.
On the employer’s appeal—
Held, appeal allowed. While it was not open to the court to extend the time limit of a statutory period for the bringing of an appeal under section 17 of the Immigration, Asylum and Nationality Act 2006, where the last day of the specified number of days fell on a public holiday or on a day when the relevant public office was closed for the entire day, section 17 was to be construed as requiring the delivery of the relevant document to the court office itself on the following business day. Further, while the scope for departure from a 28-day time limit such as that in section 17 was extremely narrow, a person was entitled to serve notice at the last possible moment and the relevant period was not to be cut down by bringing it forward. In the present case, the time limit would have been brought forward by three days and, therefore, the employer had been entitled to file its appellant’s notice on the day after the bank holiday. Moreover, the employer had done all it could to issue the appeal in time and the county court’s error constituted exceptional circumstances justifying an extension of time and the judge was wrong to determine otherwise (paras 27, 36, 38, 41, 45, 46).
Pritam Kaur v S Russell & Sons Ltd [1973] QB 336, CA applied.
Van Aken v Camden London Borough Council [2003] 1 WLR 684, CA, Mucelli v Government of Albania [2009] 1 WLR 276, HL(E) and Adesina v Nursing and Midwifery Council [2013] 1 WLR 3156, CA considered…”.
http://cases.iclr.co.uk/Subscr/search.aspx?path=WLR+Dailies%2Fwlrd2016%2Fwlrd2016-621