Home Secretary pays the price for late filing

R (On the Application Of Idira) v The Secretary of State for the Home Department [2015] EWCA Civ 1187

This appeal related primarily to a human rights claim for detention in prison rather than an immigration removal centre.  However, a key aspect of the Judgment focused on relief from sanctions for failing to meet deadlines and provides a useful analysis of adverse costs orders by the Court of Appeal in the wake of the landmark decision in Denton v TH White Ltd [2014] EWCA Civ 906.

 

Background

The appellant, Idira, had claimed in the first instance that his right to liberty and security under Article 5 of the European Convention on Human Rights had been breached.

Idira’s claim was dismissed by the High Court.  He appealed, but contrary to the relevant Practice Direction, failed to file a skeleton argument in time.  The Home Secretary agreed to two extensions of time and Idira made the necessary filings around two months later than due.

However, the Home Secretary was also tardy: her Respondent’s Notice and skeleton argument came 19 weeks after Appellant’s Notice.  The Home Secretary sought agreement from Idira for an extension of time but this was refused and the Home Secretary was forced to make an application.

Whilst the Judge granted the extension of time requested, the Home Secretary was ordered to pay Idira’s costs on an indemnity basis – meaning there was no obligation on Idira to show his costs were proportionate to the matters concerned.

 

Appeal

The Home Secretary appealed this decision making the argument that no reasonable litigant would have refused her request for an extension because:

  • There was no disruption to the appeal timetable;
  • The respondent’s notice was key to the appeal;
  • The refusal constituted an unreasonable attempt to take advantage of the Home Secretary’s default

 

Decision

The Court of Appeal chose not to alter the award of costs, and agreed that the Home Secretary’s apparent need to “consider her position carefully” and her Counsel’s high workload were “inadequate” reasons for her delay.  The Home Secretary’s previous conduct of a similar fashion had been noted by the Court – and it appeared to count against her, as McCombe LJ disapproved of the Home Secretary’s “relaxed approach to the timing of Respondents’ Notices that was adopted in [another case] and this case.”

Lord Dyson directly quoted the wording from Denton reminding parties that they should not “adopt an unco-operative attitude in unreasonably refusing to agree extensions of time and in unreasonably opposing applications for relief from sanctions.”   However, he stated that it is not incumbent upon an innocent party to agree every request for an extension simply because the timetable would be unaffected or because no prejudice would be suffered.  Instead, it is an important part of the Court’s case management that the parties refrained from deviating from deadlines in every instance.

 

Comment

This case provides yet further guidance on the implementation of Denton and also reminds parties that even where applications for extensions are approved, there is a significant risk of a hefty costs bill where there has been unreasonable and unjustified delay which necessitates the application.

For more advice on this decision and any litigation queries you have generally, contact Tom Smith, Head of Dispute Resolution at Forbes at tom.smith@forbessolicitors.co.uk or call 0800 689 0831.

Tom Smith

About Tom Smith

Tom is a Partner and Head of the Dispute Resolution Department at Forbes Solicitors. Tom’s blogs cover his specialisms of business disputes involving commercial contracts, shareholders, partnerships, share sales and warranties, banking issues, restrictive covenants and professional negligence.

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