Jersey &
Guernsey Law Review – October 2012
Shorter articles
Statutory Time Limits, Jurisdiction
and Empêchement
Robin Gist
On the proper construction of the Housing (Control
of Occupation) Guernsey Law, 1994, the period for bringing an appeal under s 56
of that Law was two months immediately following the date of the notice giving
the decision, and that time limit could not be extended pursuant to the court’s
inherent jurisdiction, the court’s Civil Rules or otherwise. While the
principle of empêchement might be invoked to “modify” the
time limit expressed in the primary legislation, it did not benefit the
appellant on the facts of this case.
A. Introduction
1 The question of whether the court retains a
discretion, either by virtue of its inherent jurisdiction, customary law or
otherwise, to extend the time prescribed for the doing of an act by primary
legislation (a “statutory time limit”) was recently addressed by
the Royal Court in Carr v Housing Dept
(Minister).
2 The judgment appears, potentially, to address
an issue of particular importance in the Bailiwick given the preponderance of
statutory time limits, often in relation to a right of appeal. Section 11(4) of
the Aviation (Bailiwick of Guernsey) Law, 2008, for example, sets out that
“An appeal under this section shall be instituted—(a) within a
period of 28 days immediately following the date of the Director of Civil
Aviation’s decision.” There is no provision within the law for the
discretionary extension of that time limit. Interestingly, s 68(4) of the Land
Planning and Development (Guernsey) Law, 2005, provides that an appeal to the Planning Tribunal must be made
within a time limit of six months for certain decisions (s 68(4)(a)), but
provides for time to be extended by agreement in other circumstances (s 68(4)(b)).
In an altogether different sphere, the Companies (Guernsey) Law, 2008 sets out
various time limits without power to extend the same, for example, applications
to the court under ss 345 or 346, or an application to apply to set aside an
action of the Registrar pursuant to s 511 (although query whether, this time
limit being “Subject to any direction given by the Court”, there is
not in fact provision for extension of this time limit by the court).
B. Housing control appeals
3 The Housing Control laws have contained a
right of appeal in relation to decisions made by the Housing Department since
their inception. The Housing Control (Emergency Provisions) (Guernsey)
Law, 1948 ran to only six sections, one of which—s 2—provided
that an appeal shall lie to the Royal
Court from any refusal to grant a housing licence.
Interestingly, a statutory time limit for such appeal was not introduced until the
Housing (Control of Occupation) (Guernsey) Law, 1982 was specifically amended
by the Housing (Control of Occupation) (Amendment) (Guernsey)
Law, 1990.
4 Since that amendment, the section
providing for a right of appeal has remained the same. The current
incarnation—the Housing (Control of Occupation) (Guernsey)
Law, 1994 (the “1994 Law”) sets out by s 56(2) that—
“An appeal under this section
shall be instituted by way of summons which shall set out the material facts
upon which the appellant relies and which shall be served upon the President of
the Authority within a period of two months immediately following the date of
the notice giving the decision of the Authority.”
C. Statutory time limits considered
5 In Carr
v Housing Dept (Minister), in which judgment was handed down by the Deputy
Bailiff on 15 August 2012, the court gave consideration to the question of
whether s 56(2) should be construed as providing the court with jurisdiction to
entertain a purported appeal in circumstances where the statutory time limit
provided by that section had not been complied with.
The facts
6 It was common ground that the Minister of
the Housing Department (the “Department”) had hand-delivered a “Decision Letter” dated 16 May
2012 to Mrs Carr refusing her request for a housing licence on non-employment
grounds. On a strict interpretation of s 56(2), therefore, Mrs Carr had until
16 July 2012 to serve a summons on the Department in order to institute an
appeal. Her summons was not in fact served until 23 July 2012.
7 As a result of the late service, the
Department made an application to strike out the purported appeal on grounds
that the court had no jurisdiction to hear such purported appeal served, as it
was, out of time, meaning that pursuing the matter (the Department argued)
would amount to an abuse of process. Mrs Carr, in turn, made a cross-application
for an extension of time for service of the summons, attempting to invoke the
court’s inherent jurisdiction.
Mucelli v Government of Albania
8 The Department, in asking the court to
find that a statutory time limit goes to the very jurisdiction of the court,
and so is strict and cannot be extended, relied, in the absence of any
authority from the Bailiwick, on the House of Lords decision in Mucelli v Government of Albania. Mucelli comprised two conjoined appeals relating to time limits in
appeals under the Extradition Act 2003.
9 The failure, in Mucelli, to file a notice of appeal within the very short
prescribed period of seven days had the consequence that the purported
appellant would be extradited without further right of appeal. This is particularly
notable since, in giving the Carr judgment,
the Deputy Bailiff reminded himself of the warning provided by Southwell, JA in
Perkins v States Housing Auth that the powers given to
the Department under the 1994 Law are draconian and must be exercised with care
and sensitivity to avoid any abuse of those powers.
10 The Deputy Bailiff considered the leading
judgment of Lord Neuberger of Abbotsbury who, having rejected the contention
that powers provided by the CPR can be invoked to extend a statutory time limit
or to avoid service required by statute unless the statute so provides,
stated—
“Accordingly, it would be necessary to find some
statutory basis for the court having power to extend time, or indeed to
dispense with the service which section 26(4) requires. The only arguable such
basis is to be found in the words ‘in accordance with the rules of court’,
which, it is contended, incorporate the various provisions of the CPR to which
I have just referred. I cannot accept that argument.”
11 As the Deputy Bailiff noted, their
Lordships were not, however, unanimous. The Deputy Bailiff, accordingly,
considered the dissenting judgment of Lord Rodger of Earlsferry, who felt that
with a relatively short but utterly rigid time limit, the potential for substantial
injustice was striking—
“If the intention was, on this occasion, to ignore
these realities and impose a rigid deadline for service, I would again have
expected the Bill to say so in clear terms. Members of Parliament could then
have seen that this was what they were being asked to enact and could have
pondered the consequences.”
12 The Deputy Bailiff, while reminding
himself that the Royal Court need not be bound by the House of Lords’
decision could, however, find no reason to adopt Lord Rodger’s dissenting
view and preferred the majority view. As the Deputy Bailiff pointed out,
accepting the Department’s submissions, had the legislators intended that
there be a discretion to extend time, they would have inserted such a provision
in the Law as is seen, for example, in s 17 of the Employment Protection
(Guernsey) Law, 1998 (as amended). Indeed, the English cases
Mrs Carr attempted to rely upon did not assist her since the relevant
legislation in those cases contain provisions allowing such extensions.
No relief from Civil Rules
13 Equally, the Deputy Bailiff found that he
could not pray in aid of Mrs Carr the Royal Court Civil Rules, 2007, since
those procedural rules (allowing in certain circumstances extensions of time)
could not trump the 1994 Law.
No possibility of waiver
14 Accordingly, the time limit set out by s
56(2) of the 1994 Law could not be extended, and the time limit for service
expired on 16 July 2012. The Deputy Bailiff further accepted the
Department’s submission that the time limit was not one that could be
waived by the Department (had it wished or attempted to—another point
raised by Mrs Carr) for the reasons set out by Lord Denning, MR (as he then
was) in Dedman v British Bldg & Engr
Appliances Ltd—
“Even if the employer is ready to waive it and says
to the tribunal: ‘I do not want to take advantage of this man. I will not
take any point that he is a day late’; nevertheless the tribunal cannot
hear the case. It has no power to extend the time . . . The tribunal
is not competent to hear it.”
D. Empêchement
15 The judgment given in Carr is also important for the Deputy
Bailiff’s findings on the customary law principle of empêchement d’agir. This was the last way in which Mrs
Carr could avoid her appeal being struck out. The Department “very fairly
conceded” that the principle of empêchement
(literally, impediment) might apply. Mrs Carr argued that there might be two empêchements to
consider—first that, as a result of human error, she was confused as to
the date by which she had to serve her summons; and secondly that, as a result
of her impecuniosity, it was impossible to serve the summons before 23 July
2012 (HM Sheriff requiring a fee to effect service).
Human error
16 As to human error, the Deputy Bailiff
dismissed this on the evidence before him without needing to consider whether
the same could amount in law to an empêchement
since it demonstrated, in essence, that Mrs Carr was well
aware of the date by which she had to serve her summons.
Impecuniosity
17 As to impecuniosity, the Deputy Bailiff
took Mrs Carr’s submission at its highest. Accepting for the moment that
she was in fact impecunious, could this amount to an empêchement?
18 The Deputy Bailiff gave consideration to
the leading cases on empêchement,
and adopted, as he directed himself that he must (see, for example Holdright Ins Co Ltd v Willis Corroon
Management (Guernsey) Ltd, and Yaddehige v Credit Suisse Trust Ltd), the test as set out by the Jersey Court of Appeal in Public Servs Cttee v Maynard, and Boyd v Pickersgill & Le Cornu, that—
“(c) Mere ignorance does not bring the maxim into
operation . . . (d) Where there is an impediment creating such a
practical impossibility of which ignorance is a part, then the maxim may come
into operation and prevent time running.”
and—
“the epithet ‘practical’ deployed in Maynard softens rather than strengthens
the concept of impossibility. It requires a consideration of what is in fact,
not in theory, possible.”
19 The Deputy Bailiff, having noted that he
was unaware of any decision pointing to impecuniosity as an empêchement, pointed out however
that “the maxim can be applied to new circumstances”.
20 Nevertheless, the Deputy Bailiff took the
view that it would be wrong to extend the maxim of empêchement to impecuniosity. He was not satisfied that it
amounted to an impediment such that the clock should stop. Even if the Deputy
Bailiff was wrong about that, he held that, on the evidence before him, Mrs
Carr had not in fact been impecunious, and during the period of time in
question her finances could have permitted payment.
All factors together
21 Having considered the two impediments
raised separately, the Deputy Bailiff considered whether, taken together and at
their very highest (for Mrs Carr), an empêchement
was made out. However much he tried to fit Mrs Carr’s circumstances into
the maxim of empêchement,
however, the Deputy Bailiff could not conclude that it was, at any time,
impossible for Mrs Carr to serve her summons on the Department. Accordingly, empêchement failed, also, to save
Mrs Carr’s appeal, which was dismissed.
Robin Gist has recently moved to Guernsey
to work for the Law Officers of the Crown. Called to the Bar of England and Wales in 2004, he remains a door tenant of Lamb
Chambers, London,
where he had established a successful chancery.