Get your excuses for your excuses in early

Poorsalehy v Wandsworth LBC (2013) QBD 07/11/2013 {note on Lawtel, not on Bailii yet]

A cautionary tale, albeit one that was rather hard on Mr Poorsalehy. Mr P had applied to Wandsworth as homeless. His application was rejected by s.184 decision and the s.202 upheld the decision (I’ve no idea about the details).

Mr P instructed solicitors to appeal under s.204 Housing Act 1996 in March 2012.S.204(2) and (2A) provide:

(2)An appeal must be brought within 21 days of his being notified of the decision or, as the case may be, of the date on which he should have been notified of a decision on review.

(2A)The court may give permission for an appeal to be brought after the end of the period allowed by subsection (2), but only if it is satisfied—
(a)where permission is sought before the end of that period, that there is a good reason for the applicant to be unable to bring the appeal in time; or
(b)where permission is sought after that time, that there was a good reason for the applicant’s failure to bring the appeal in time and for any delay in applying for permission.

Mr P’s appeal was lodged shortly after the 21 days required in (2).

An application for permission to appeal out of time was filed in July 2012. The witness statement to the application provided a good explanation as to why the appeal was brought slightly out of time. However the application and statement did not address why the application for permission itself was not filed until some 4 months later.

The first instance Circuit Judge refused an extension of time to bring the appeal on the basis that no good reason had been provided for the delay in applying for permission to appeal out of time under (2A)(b).

Mr P appealed, on the basis that the failure to apply for permission promptly, or to explain the delay, was his solicitors, not his. He should not be fixed with the failings of his solicitors.

The High Court held that there was no general rule that fixed a party with the procedural errors of his solicitors.

However, Mr P could not simply hide behind saying it was his solicitor’s fault. He had to show a reason or cause for the delay. That burden could be discharged by showing he had relied on incompetent solicitors, Hytec Information Systems Ltd v Coventry City Council [1997] 1 W.L.R. 1666 and Corbin v Penfold Metallising Co Ltd considered. This depended on the facts of the case and evidence of the extent of Mr P’s knowledge.

In the present case, there was no evidence at all. The Judge below could not be criticised for finding that the delay was profound and prolonged, such as required explanation. There was no evidence before the Judge below on the extent of Mr P’s involvement. As there had not been such evidence to mean that the Judge was bound to conclude that Mr P was not at fault, the appeal could not succeed.

Comment

Before anyone asks, no, I don’t know who the solicitors were!

While the policy reasons for this decision are clear – the prospect of every procedural failing resulting in an appeal by the client is not one the Courts would welcome – this does seem somewhat harsh on Mr P.

There are some procedural steps in which the client is likely to play a very small part, or next to no part at all. An application for permission to appeal out of time, for example, would only require the client’s input to the extent of instructions as to the reason for the delay to the appeal, which one would certainly expect to have been taken at the same time as the instructions on the appeal.

So, unless Mr P had given instructions on the appeal, but had somehow failed, despite being asked, to give instructions to the solicitors on reasons why the appeal was out of time, and had continued to fail to do so for some 4 months, it is hard to see how he could be considered to be ‘involved’ in the delay. This scenario is not impossible, of course, but does seem rather unlikely.

But the absence of evidence in this case must be key. If there had been evidence from Mr P on, for example, what instructions he gave the solicitors and when, and maybe what he was advised about deadlines, the appeal may have had better prospects. Though how that evidence should have been before the Judge below when Mr P was still represented by the solicitors is less than clear.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Homeless, Housing law - All and tagged .

2 Comments

  1. [Edited by NL to remove name of solicitor]

    Your statement ” So, unless Mr P had given instructions on the appeal, but had somehow failed, despite being asked, to give instructions to the solicitors on reasons why the appeal was out of time, and had continued to fail to do so for some 4 months, it is hard to see how he could be considered to be ‘involved’ in the delay. This scenario is not impossible, of course, but does seem rather unlikely.” deserves a comment to highlight the fact that for known or unknown reasons unbeknown to me which is evident in my emails to my solicitor and his replies to demonstrate that I was kept in the dark with regards to advise about deadlines until the eleventh hour and even then I was not made aware of the implications.

    Furthermore I was not permitted to inform Judge Walch and present my correspondences with my solicitor [deleted by NL] as evidence as well as my instructions to him explicitly requesting to be kept informed of the every step which he deliberately chose to disregard as it emerged too late. Despite the fact that High Court held the opinion that there was no general rule that fixed a party with the procedural errors of his solicitors Surprisingly these evidences were not requested or submitted at High Court on my behalf.

    • I’ve removed the name of the solicitor as this is properly a matter between you and them, and out of fairness as they are not here to give their account.

      I do think this was a decision that was very tough on you. Your communications with your solicitor could not realistically be presented in evidence at the hearing of the application for permission to appeal, as this would have been a breach of solicitor/client privilege, as your then solicitor was still acting for you.

      While those communications might have been laid before the High Court, it would have made little or no difference, as the question was whether HHJ Welchman’s decision was right on the evidence before him, so the ‘new’ material would probably not have been considered. (An appeal is really about whether the first decision was right in law on the evidence available to the the first Judge, it is not about looking at the whole decision afresh). As I mentioned in the last paragraph of the post, it is a double bind at the permission application hearing, and I can understand how you would feel unfairly treated.

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