C/2000/2910/A
Neutral Citation Number: [2001] EWCA Civ 1718
IN THE SUPREME COURT OF JUDICATURE          
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE POPPLEWELL)
                                  Royal Courts of Justice
                                  Strand
                                  London WC2
 
                                  Friday, 2nd November 2001
B e f o r e :

LORD JUSTICE RIX

- - - - - - - - - - - - -

THE QUEEN ON AN APPLICATION FOR JUDICIAL REVIEW

FRANCIS PHILOGENE

‑ v ‑

HIGHBURY MAGISTRATES' COURT

- - - - - - - - - - - - -
(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - - - - -

The Applicant appeared in person
The Defendant did not attend and was unrepresented

- - - - - - - - - - - - -
J U D G M E N T
Friday, 2nd November 2001
1.	LORD JUSTICE RIX: This is an application dated 25th April 2001 made by Mr Philogene to the Court of Appeal that it grants him permission to appeal out of time in respect of an application for permission to move judicial review proceedings in respect of a conviction that Mr Philogene suffered at the hands of magistrates on 22nd June 1994, when he was convicted for nonpayment of a community charge. He spent a few days in prison before the community charge was paid, he tells me by his father, and he was released.
2.	In respect of that conviction Mr Philogene applied originally for judicial review on 18th January 1995. His complaint then was that because he was on income support he should not have had to pay the community charge, and he was unaware that he could have made an application for community charge benefit; he considered that the magistrates and the local authority were harsh and inconsiderate. He also included in that application his reasons for delay in applying for judicial review (because he was already then nearly four months out of time). He put that down to lack of legal experience, the need to seek advice and also the shock of events.
3.	That application came on paper before the crown court on 5th April 1995, when Schiemann J (as he then was) refused the application. He said this:
“Your application lacks clarity and it would not be reasonable to expect the magistrates to deal with it. You make many allegations against the Council but name the magistrates as respondents. You do not make clear what facts were placed before the magistrates and by whom, whether you were present and if so what you said. The application is out of time and, the proper procedure would have been by way of case stated for which you are now also late.” 
4.	Mr Philogene then renewed his application in person, as he was entitled to do, and that came before Popplewell J on 11th August 1995. The application was then refused by Popplewell J. I have not been able to find in the otherwise very well prepared bundles which Mr Philogene has prepared for this application the judgment of Popplewell J before me on that occasion.
5.	Mr Philogene would have been entitled within a short period of time to seek permission from the Court of Appeal to appeal against that refusal of Popplewell J. He did not do so, at my rate until more than five years had passed by, when, on 21st August 2000 he filed his notice of appeal to this court, again raising the merits of his application below. He could not get his tackle in order for that application, and so the matter came before Master Venne on 6th December 2000 in Mr Philogene's absence, when Master Venne made an order that, unless Mr Philogene fully complied with the court's requirements as to the proper preparation of his application for permission to appeal by at latest 4.30 pm on 30th December 2000, his application would stand dismissed.
6.	Mr Philogene received prompt notice of that order. He sought to comply with it but was not able to comply with it. He sought, he tells me, various extensions of time for the purposes of that order, and he was granted a number of extensions, but he still was not able to comply with the order and in the end the order was struck out. He is not quite sure how many extensions were granted, or to what point of time they were granted, but it was at any rate only up to a time sometime before 25th April 2001, because on that date, 25th April 2001, Mr Philogene made his new application, which is the application which is before me, again described as an application for permission to appeal.
7.	Nothing that Mr Philogene has put before me really justifies a second round application for permission to appeal, or even a reinstatement of his original notice of appeal made on 21st August last year. Nevertheless, just for the sake of argument, I looked at the matter on the basis that if I found merits, either in Mr Philogene's explanation as to why it took him over five years up to 21st August 2000 to present his application for permission to appeal, or why on the merits of the matter he could show a real prospect of success in the Court of Appeal if he were granted permission, or some other compelling reason why permission should be granted, I would nevertheless be prepared to reinstate his application for permission to appeal and deal with it as though it had been made on 21st August 2000, as it were to reinstate his original application for permission.
8.	However, I regret to tell Mr Philogene that the explanation he gives for being five years out of time even as of August 2000, does not really suffice to justify me to extend time. He tells me that such a matter cannot be rushed, that it can take a full eight years to come before the Court of Appeal, and he submits, in effect, that if he had come to the Court of Appeal in less time he would have been rushing the matter and he would have made the position worse than it might otherwise have been. I am afraid to tell Mr Philogene that I am unable to accept that as a good reason why he has not complied with the really tight timetable for making permission to appeal applications, which is really a matter of a few days, or at most, a few weeks.
9.	On the merits ‑ because at the end of the day the merits are the thing that ultimately count ‑ again I remain unable to grant Mr Philogene permission. He says that it is a matter of wisdom and philosophy, that his case is a good one and should come before the Court of Appeal, that he has sought to be genuinely creative, which I am sure is true, but nevertheless it seems to me that the position stands where it did in the reasons given by Schiemann J way back in 1995 when he refused this application on paper.
10.	It may be, I do not know, that with better information available to him Mr Philogene would have been in a position to seek at any rate a part‑payment of his community charge by means of obtaining community charge benefit, and it may be if that had been the case he would have been in a better position (I do not know) to resist his conviction back in June 1994. It seems to me that even when that is said, there still remains no good reason for judicial review, no real prospect of success on appeal.
11.	Therefore both on his failure to give a good reason why an extension of time should be granted to him and on the merits of this application, I am afraid that this renewed application for permission to appeal must be refused.
(Application refused; no order for costs).