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Public Law Solicitors

Extension of time – Court of Appeal – Delay – Legal Aid – When to lodge an application for extension of time? (11 December 2015)

Date: 11/12/2015
Duncan Lewis, Public Law Solicitors, Extension of time – Court of Appeal – Delay – Legal Aid – When to lodge an application for extension of time?

Judgment was handed down in the Court of Appeal in the matter of The Queen on the application of Frank Kigen and Janet Cheruiyot –v SSHD on Friday 11 December 2015. The matter came before Lord Justice Moore-Bick, Lord Justice Simon and Lord Justice Davis on 28 October 2015. Shalini Patel of Duncan Lewis Solicitors has conduct of this matter. Althea Radford of 1 Pump Court Chambers is instructed counsel.

This case concerned an appeal against an order of the Upper Tribunal dismissing the appellants’ application for an extension of time in which to renew their applications for permission to apply for judicial review. The appellants are seeking to establish that they are entitled to leave to remain in the United Kingdom by reason of descent from a maternal grandfather.

The Secretary of State’s decision was conveyed in a letter dated 30 May 2014 and the judicial review was lodged one day out of time. The Upper Tribunal ordered that the claim was out of time and refused to admit it. An oral renewal request was made 13 days out of time, due to there being an outstanding application with the Legal Aid Agency. The application was lodged the day after funding was eventually granted. Upon lodging the oral renewal request Duncan Lewis sought the necessary extension of time and the application was supported by evidence. The extension of time was refused at an oral hearing on 6 February 2015 with permission to appeal to the Court of Appeal.

The Court of Appeal have now handed down judgment and allowed our appeal but with guidance that will have a huge impact on all practitioners undertaking Judicial Review work under Legal Aid and specifically in relation to Legal Aid delays.

It has been held as at paragraph 24 of the judgment that:

“Delay of any kind in proceedings for judicial review is to be avoided as far as possible and the time allowed for applying for the reconsideration of any application for permission is kept deliberately short. In my view, although the delay was not of such a length as to affect greatly the progress of the proceedings, it called for a satisfactory explanation. The explanation provided, namely, that the appellants were waiting the outcome of their application for legal aid, is not one that I think can be regarded as satisfactory in the circumstances.”

Paragraph 28 of the judgment goes on further to give guidance on how such cases, where there are legal aid delays, should be dealt with going forward:

“It may be that, in the light of the older authorities to which I have referred, solicitors in general may have been under the impression that any delay awaiting a decision by the Legal Aid Agency would be simply be ignored if an extension of time were required as a result. This is not the case and it is to be hoped that any such misunderstanding will have been dispelled as a result of the decision in this case. Those acting for parties in the position of these appellants will in future need to take steps either to lodge the necessary form promptly on behalf of their clients or to advise them of the need to do so on their own behalf. Failure to lodge the necessary request within the prescribed time may in future result in an extension of time being refused. However, given the degree of uncertainty that surrounded the matter, I am persuaded that to refuse an extension of time in this case would be to impose on these appellants greater prejudice than is justified by the delay.”

In light of this judgment, it is likely that extensions of time on the basis of delays in securing legal aid funding will no longer be granted unless there are exceptional grounds to such a request. In the last resort, claimants will be expected to lodge the necessary notices without legal assistance, and apply for fee remission if they are unable to pay Court fees. The Court did suggest that applications to extend time made before the expiry of the relevant deadline may be treated differently (applying Roberts v Momentum Services).

About the Author: Shalini Patel

Shalini joined Duncan Lewis in November 2011 as a caseworker and within 5 months of being in the firm obtained her training contract. Shalini undertook her training in the Immigration, Childcare and Family departments over a period of 18 months and qualified in March 2014. Upon qualification Shalini joined the Public Law team under Director, Toufique Hossain. Shalini is based in the Harrow office.

Since Shalini joined the Public Law department she has expanded on her knowledge to an extensive level and undertaken Judicial Review work challenging unlawful detention; false imprisonment; detention of pregnant women; removals to third-countries under the Dublin Regulations among many other interesting areas including Human Rights claims.

Shalini completed her LPC at BPP Law School, London, whilst working with the Treasury Solicitors Department as an Executive Officer where she gained extensive experience in Immigration Judicial Review work.

Shalini is fluent in Hindi and Gujarati.


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