Guernsey Legal Resources

  Held: (1) The applicant’s appeal had not been validly instituted. The Tribunal had no power to extend the time for appeal, since (a) art. 11(3) of the Utility Appeals (Rules of Procedure) Order 2002 (which gave it the power to extend any time-limit) did not enable it to extend the 14-day limit prescribed by s.15(4) of the Law, as the Rules of Procedure were made under the Regulation of Utilities (Utility Appeals Tribunal) Ordinance 2001, which had itself been made under the general procedural powers of ss. 14(6) and 23(1) of the Law, rather than under the specific powers given by s.15(8) to amend s.15 (and which had subsequently been used for this purpose in 2007 after the present proceedings had begun); (b) nor could art. 11(3) be said validly to “supplement” the time-limit, since if it increased it for an individual case, it would be increasing its jurisdiction and granting an additional right of appeal to an appellant who had already lost that right; and (c) the Tribunal could not extend the time for appeal before the summons instituting the appeal had been issued and therefore, in accordance with the strict procedural scheme laid down by the legislation, before the members of the Tribunal had been appointed. They could not decide to extend the time-limit before they had been validly appointed.

  (2) A mistaken extension of time for appeal could not be excused as a “procedural irregularity” within the meaning of s.16(2) of the Law, since non-compliance with time-limits in general was not an irregularity but rather a mistake going to jurisdiction and it was axiomatic that a tribunal regulated by statute could not confer jurisdiction on itself even if all the necessary parties to the decision consented (R. v. Home Secy., ex p. Jeyeanthan, [2000] 1 W.L.R. 354, observations of Judge, L.J. followed).

  (3) It was clear that the States had intended that invalidity should follow if proceedings were taken in breach of the time-limit. This was not merely a “minor and insubstantial deviation” from a time-limit by a court, which would not invalidate the proceedings (R. v. Soneji, [2005] 4 All E.R. 321, distinguished) or non-compliance by a statutory authority with the rules governing the discharge of its statutory duties, which might have a similar effect (London & Clydeside Estates Ltd. v. Aberdeen District Council, [1980] 1 W.L.R. 182, distinguished). The States had intended that the 14-day limit be strictly observed and it was worthy of comment that, when extending the period in the later 2007 Ordinance, they had not conferred power on the Tribunal to grant an extension itself.

  (4) Nor was the applicant’s right to a fair hearing of its appeal under art. 6(1) of the European Convention on Human Rights affected by the court’s decision. It was neither arbitrary nor disproportionate to interpret the time-limit in s.15(4) as inflexible; the applicant’s advocates were well aware of the requirements of the Law, the Ordinance and the Rules of Procedure and although they maintained that compliance with them was onerous within the 14-day time-limit, compliance was well within their capabilities if they proceeded quickly and followed the correct procedures. Similarly, it was not contrary to the principle of equality of arms (and so deny the applicant a reasonable opportunity to present its case), to deprive the Tribunal of the right to extend the 14-day period merely because the respondent had 42 days in which to respond. This was especially so when the applicant had known for several months that it was to be refused a licence.

  (5) Although it might be arguable that the present ruling was made without jurisdiction, since the Tribunal had not been validly appointed when it made the reference to the court, the making of the reference was only undertaken by the Tribunal after consultation with all the parties involved. In particular, the first intervener (Guernsey Airtel Ltd.) had itself raised the preliminary objections that the appeal was out of time and that the Tribunal had no power to extend time, so that if necessary it could itself have raised the matter with the court, perhaps by way of judicial review. It was important that the court have the opportunity to rule upon the issues raised in the reference and no party had been inconvenienced or denied the opportunity to present its case by treating the reference as validly made.