In R (Idira) v Secretary of State for the Home Department, the Court of Appeal was primarily concerned with the lawfulness of the Home Secretary’s policy of using prisons, and not Immigration Removal Centres, to detain time-served convicted foreign national offenders. In the same appeal, however, it was required to consider the procedural issue of relief from sanction for delay: less weighty, perhaps, than the substantive subject matter of the appeal, but nonetheless of interest to litigators.
The High Court dismissed the appellant’s claim on 19 December 2014. The appellant filed its appellant’s notice on 23 January 2015, but did not file a skeleton argument at the same time (contrary to PD 52C paragraph 3(3)(g)). After two extensions of time (both agreed by the Home Secretary), the appellant filed its skeleton argument on 12 March 2015. It was then the Home Secretary’s turn to delay: she submitted her respondent’s notice and skeleton argument some 19 weeks after the appellant had filed its skeleton argument, and asked for an extension of time pursuant to PD 52C paragraph 12. The appellant opposed this extension.
The Master correctly treated the application for an extension of time as one which fell to be determined in accordance with the principles in Denton v TH White. The Master granted the extension of time but ordered the Home Secretary to pay the appellant’s costs on an indemnity basis.
The Home Secretary appealed against the Master’s adverse costs order, arguing that no reasonable litigant would have opposed her application for an extension of time, since:
- The appeal timetable would not be disrupted.
- It was difficult to see how the appeal could have sensibly proceeded without the respondent’s notice.
- By forcing a contested application the appellant was opportunistically and unreasonably trying to secure a tactical advantage off the back of the Home Secretary’s default.
The Home Secretary argued that the appellant should pay the costs of and occasioned by the contested application (save the Home Secretary’s own costs). The Court of Appeal did not agree.
The Master’s reasoning, with which the Court of Appeal did not interfere, is instructive:
- Although there was substantial delay, it was unlikely to have any impact on the course of the proceedings or cause the appellant any prejudice. The delay was not, therefore, serious or substantial in the sense denoted in Denton.
- It is no part of the court’s function to impose sanctions for punitive purposes.
- It was a significant appeal; the grounds in the Notice of Appeal were the “bulk” of the Home Secretary’s case, and it was in the public interest to consider the matters in the Home Secretary’s notice.
Nevertheless, it was an “inadequate” reason for a delay that the Home Secretary needed to consider the position carefully, or that Counsel had a high workload. The delay was “excessively long”. This had put the appellant to expense. Hence the Master’s order to pay indemnity costs, which the Court of Appeal upheld.
This case demonstrates that the guidance in Denton will often give rise to a balancing exercise, whereby a serious procedural fault may be forgiven (but at the expense of an adverse costs order). Here, the Court of Appeal considered that the Master had “struck the right balance”. A similar situation arose in the recent case of Salford Estates (No. 2) v Altomart.
Applying Denton, the Master of the Rolls repeated that parties should not adopt “an unco-operative attitude in unreasonably refusing to agree extensions of time and in unreasonably opposing applications for relief from sanctions”. Nor should they “try to take advantage of a minor administrative error”. Nonetheless, he expressly emphasised the words “unreasonably” and “minor inadvertent”: a party is not required to agree to an extension of time in every case where the extension will not disrupt the timetable of the appeal or cause them to suffer prejudice. This is important. In this case, the important distinguishing factor was the “public interest” at stake.
On the other hand, in Idira the Home Secretary’s delay was substantial and unjustified, and (in the opinion of the Master of the Rolls), in opposing the extension of time, the appellant had not been seeking to take advantage of a “minor error”. In short, the Home Secretary was not in a good position to appeal the adverse costs order, especially in circumstances where (as McCombe LJ rather sternly noted):
“…concern has arisen as to a pattern of delays on the part of this particular respondent…the court does not view favourably the type of relaxed approach to the timing of the submission of Respondents’ Notices that was adopted [by the Home Secretary] in [another case] and in this case”.
Idira should not encourage lawyers to take a more lax approach to procedural time limits. In general, laggardly litigants will not have the same claim to public interest as the Home Secretary, so may not be granted relief at all. Even if they are successful, they might nonetheless be subject to a substantial bill for costs.