Case management during COVID-19 and applying to extend time in a section 204 appeal

Sarah Salmon discusses the court’s use of case management powers during the COVID-19 pandemic in a recent case and the importance of making an application to extend time in a s.204 Housing Act 1996 appeal.

This case of Gil v Camden LBC [2020] EWHC 735(QB) is a useful reminder that sometimes a belts and braces approach is best. It also demonstrates the courts’ willingness to use its full range of case management powers for cases to be heard remotely.

Even where an appellant in a section 204 appeal takes the view an appeal was made “in time”, if there is any room for doubt an application to extend time should be made promptly setting out all the reasons, and any evidence, for any perceived delay. This is especially true when a directions order from the county court expresses that it looks like the appeal may be out of time.  

Background 

In early 2015, the London Borough of Camden made a decision under section 184, Housing Act 1996 that the appellant was homeless, eligible for assistance but that she was not in priority need. The appellant requested a review and the local authority upheld its original decision in a letter dated 22 April 2016.  

At this time, the appellant was represented by solicitors who stamped the review decision letter as received on 26 April 2016. The appellant filed an appeal. The appellant’s notice was marked as issued on 19 May 2016. 

There was a long procedural history in the county court. In an earlier court order, His Honour Judge Luba QC had noted the date of the review decision and the date the appellant’s notice was filed. As such, the order referred to the issue of whether the appeal was in time.

The appeal was listed for 2 August 2017. On 1 August 2017, the appellant filed an application to adjourn. On 2 August 2017, His Honour Judge Luba QC refused the application.

After her application was refused, the appellant purported to become ill and called herself an ambulance. The appeal was to be heard before Mrs Recorder Jones. Mrs Recorder Jones took into account the circumstances surrounding the appellant leaving court and decided to proceed with the hearing.  

The appellant’s appeal was struck out on the basis it was out of time and the appellant had not applied for an extension of time.   

The appellant sought permission to appeal from the High Court.  

Case management 

Permission to appeal, with the appeal to follow if granted, was listed for hearing on 24 March 2020. Before that date, the UK government announced measures to deal with the COVID-19 pandemic. As a result, the courts have had to adapt to remote hearings either via Skype Business (or another appropriate service) or by phone. There was a remote hearings protocol in place at the time of the hearing. See the current remote hearings protocol.  

The appellant, Ms Gil, was in person. She did not have access to Skype and said she was unable to afford the cost of a telephone hearing. Therefore Mrs Justice Tipples DBE had to decide whether the hearing could be held in a different way.  

The judge found that the appellant had “no problem communicating, or expressing herself, by email”. Further, the appellant accepted that “the decision to proceed by way of written submissions is better than by telephone, as it does not introduce additional charges to [her] mobile phone bill”.  

In these circumstances, the appellant was directed to email the judge’s clerk everything she wished to say in support of her application by 6 pm on Tuesday 24 March. In the end, the appellant did not make any further substantive submissions and consequently, the respondent relied upon its skeleton argument prepared in response to the appeal.  

The judgment was handed down remotely by being circulated to the parties by email and being placed on Bailii with a deemed date and time of hand-down. 

Comment 

CPR Part 3, r.3.1(2)(m) provides that the court can take any other step or make any other order for the purpose of managing the case and furthering the overriding objective. 

This case demonstrates how that case management power can be used, in appropriate cases, to accommodate hearings that, for whatever reason, cannot take place in line with the remote hearings protocol i.e. by one of the methods suggested by the court. It also shows how the court is willing to be flexible during these unprecedented times. 

Substantive application 

The grounds of appeal give rise to two issues, namely, whether Mrs Recorder Jones: 

• erred in law in dismissing the appellant’s appeal because it had been brought out of time; and, 
• erred in hearing the respondent’s application to strike out the appeal in the appellant’s absence. 

The crux of the appellant’s case was that: 

• she had evidence she issued her appeal on 18 May and not 19 May 2016 as stamped by the court; and, 
• the law centre representing her at the time of the review decision, had not sent her the decision until 27 April 2016. 

Therefore the appellant said her appeal had actually been in time. The evidence from the County Court at Central London was produced some months after the hearing before the learned Recorder.   

The decision 

Permission to appeal was refused. There was no real prospect of success or other compelling reason to hear the appeal. The judge accepted the submissions on behalf of the respondent as follows. 

• During the course of the review process, the appellant instructed Brent Community Law Centre to act for her concerning the s.202 review. 
• Communications between the law centre and the respondent led to a “minded to find” letter being sent to the law centre inviting them to make further representations on the review. The law centre responded. 
• With her appellant’s notice to the county court, the appellant attached a copy of the review decision. It was clearly marked as received on 26 April 2016. 
• In line with the case of Dharmaraj v Hounslow LBC [2011] P.T.S.R. 1523, the authority was entitled to assume that the solicitors were authorised to receive notification of the review decision. Therefore, the appellant was notified of the review decision on 26 April 2016. 
• The deadline for the appeal was 17 May 2016. 
• The appellant’s notice to the county court is marked as filed on 19 May 2016 and the learned judge had no evidence to the contrary. In any event, on the appellant’s evidence before the High Court, the appeal was filed on 18 May 2016. This was one day late. 
• The onus was on the appellant to establish a good reason for the failure to bring the appeal in time and the delay in applying for permission to extend time. The appellant had not made any application to the county court nor had she supplied any evidence to show she has a good reason for failing to bring the appeal in time and why there was the delay. 
• There was nothing in the circumstances of this case to suggest the appellant has any real prospect of arguing that the decision to proceed in her absence was so plainly wrong that it must be regarded as outside the generous ambit of discretion entrusted to the judge.  

Sarah Salmon is a barrister at Field Court Chambers. She represented the successful local authority.

Read the full judgment in Gil v Camden LBC [2020] EWHC 735(QB)