[2025] UKUT 337 (AAC)

We respectfully ask that the application to appeal is accepted if it is a few days late. The current appeal team members have been under an increasing workload and time constraints. This is because the 3.5 members deal with Housing Benefit, Council Tax liability, Council Tax Reduction and NNDR appeals. We are given strict deadlines by the Valuation Tribunal Service and have to respond to directions received by the HMTBS. We are currently down a full-time member of staff due to a medical emergency and it is also the holiday season and there are childcare responsibilities within the team members.

Turning to the first in time of the three recent and relevant decisions of the Court of Appeal, Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] 1 WLR 795. The Court of Appeal therein upheld a Master’s decision that a claimant who had served a costs budget six days late required relief from sanctions under CPR 3.9 before the costs budget could be considered by the court.

The decision in Mitchell was followed shortly thereafter by that of Denton v White [2014] EWCA Civ 906, [2014] 1 WLR 3926, which concerned three conjoined appeals each of which involved the application of CPR 3.9. to cases where the claimants had failed to comply with court orders or rules. For the purposes of our decision it is only necessary to draw attention the following passages:

The decisions in both Mitchell and Denton had as their contextual setting private law civil proceedings. However, in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1663 the Court concluded that the same approach should be adopted in the public law arena, acknowledging when doing so that a public law claim may raise important issues for the public at large and that this should be a factor taken into account when considering whether there is a good reason for extending time.

At [93] of its decision in Secretary of State for the Home Department v SS (Congo) & Others [2015] EWCA Civ 387, the Court of Appeal drew together the learning from Mitchell, Denton and Hysaj, in these terms:

“…a Judge should address an application for relief from sanction in three stages, as follows:

i)

The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.

ii)

The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.

iii)

The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders…

The following further guidance can also be distilled from the judgment in Hysaj:

…

Although none of the decisions cited above were made in the specific context that presents itself in the instant matter, we can see no good reason, and none was advanced by the parties, as to why the approach commended in Mitchell, Denton and Hysaj should not equally be applied to the First-tier Tribunal’s, and Upper Tribunal’s, consideration of an application for an extension of time to apply for permission to appeal (assuming of course that the notice of appeal was actually filed out of time). Nothing in the approach rehearsed above is in discord with the overriding objective of either the 2014 FtT Rules or 2008 UT Rules to deal with cases justly and fairly; indeed, it is the aspiration of achievement of these very objectives which was identified by the court in Denton, at [24], as underpinning the rationale for the third stage of the process of consideration.”