AC-2025-LON-000553 - [2025] EWHC 2616 (Admin)

In R (Liberty) v SSHD and SSFCO (Procedural Matters) [2018] EWHC 976 (Admin), the Divisional Court (Singh LJ and Holgate J) considered a failure of the Defendants in that case to have filed a skeleton argument on time. As Singh LJ explained (at paragraph 3): “It is common ground that an extension of time in such circumstances is akin to an application for relief from sanctions: see the decision of the Court of Appeal in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 [2015] 1 WLR 2472, applying the well-known principles in Denton and others v T H White Ltd (Practice Note) [2014] EWCA Civ 906 [2014] 1 WLR 3926. That exercise involves three stages: (1) to identify and assess the seriousness of the breach; (2) to consider why the breach occurred; (3) to consider all the circumstances of the case, so as to enable the Court to deal justly with the application”.

The Divisional Court went on, applying Denton, to allow the Defendants to rely on their late skeleton argument, noting that the claim had raised “matters of great importance”. However, the Court also stated (paragraph 16): “we do not take the view that breaches of deadlines of this sort, even of a day or two, should be regarded with equanimity”. The Court ordered the Defendants to pay the Claimant’s costs of that application, on an indemnity basis. It noted, among other things, the lateness of the Defendants’ application to extend time, their apparent assumption that an extension would be granted (“in effect presenting this as a fait accompli not only to the Claimant but also to this Court”), and the impact on the “timetable which the members of the Court had otherwise available to them for proper presentation for the substantive hearing”.

In this case, the Claimant made no application to extend time before the substantive hearing commenced. It simply filed the late skeleton argument.

Applying the guidance I have set out above from the Liberty case, the relevant considerations appear to me to be as follows.

First, the breach in this case cannot be described as anything other than significant. The Claimant was required to file a skeleton argument by 17 September 2025. It failed to do so until 30 September 2025, the day before the substantive hearing. The hearing bundle ought to have been filed 21 days before the hearing. It was not filed until 5 days before the hearing. It was also incomplete, omitting highly relevant documents like the Defendant’s Acknowledgment of Service and Summary Grounds; and the pagination used for the Court’s bundle was inconsistent with the pagination in the bundle which Counsel had with him at the substantive hearing. In all the circumstances, the delays and other failures to comply with the directions in this case are significantly more serious than those which troubled the Divisional Court in the Liberty case.

Secondly, there was no good reason for these failures. On instructions, Mr Fazli told me that the Claimant’s solicitors had assumed that, once counsel who had attended the oral permission hearing was sent the directions and the notice of the substantive hearing which followed, he would proactively deal with drafting and filing a skeleton argument at the appropriate time. They did not, however, formally instruct him to do this. Nor did they check whether all was in hand, or react at all to the passing of the relevant deadlines, both of which they missed. Beyond the information I have recorded, the precise sequence of events remains somewhat unclear, but even on the basis of what I was told, it cannot realistically be suggested that there was any good reason for the breach of the Court’s Order that occurred in this case.

Third, the additional circumstances of the case seem to me to include the following. The Claimant did not, once aware of the breach of the Court’s order, file any application notice seeking relief from sanctions or an extension of time for filing a skeleton argument. Instead, it merely filed the skeleton argument the day before the hearing, seeking to rely on it as though no breach had occurred. As it was said to be in the Liberty case, this conduct is inappropriate: the litigant is failing to face up to the fact that they are in breach of a Court order, and is presenting a skeleton argument to the Court as, in effect, a fait accompli. But – unlike in the Liberty case – a costs sanction (e.g. “Defendant to have its costs of the application to extend time in any event, on the indemnity basis”) is not obviously workable in a case like this one, because the other parties have incurred no costs in relation to the application. And – while the claim is no doubt of great importance to the Claimant – it cannot I think be said to have raised matters of wider public importance, such as were said to be engaged in the Liberty case.

In light of the above factors, I concluded that I was minded to allow the Claimant to rely on and to refer to the hearing bundle which it filed on 26 September 2025, but that I was minded to refuse any application for an extension of time for the skeleton argument which it filed on 30 September 2025. In fairness to Mr Fazli, once I asked him to address me on the reasons for the breach, and whether the Claimant was or was not making an extension of time to file a skeleton argument, he conceded that no such application could realistically succeed. I agree. I explained to Mr Fazli that the consequence of this was not that he could not put a case at all, rather that he would need to rely very closely on the way the claim had originally been put in the Claimant’s Statement of Facts and Grounds (in effect treating that document as his skeleton argument), along with relevant passages from the bundle in support. He agreed that this was the appropriate course in the circumstances. That is the approach I have taken.