DELAY, DENTON, APPEALS AND CROSS-APPEALS: EXTENSION OF TIME WOULD HAVE BEEN GRANTED

Mediatelegal

In Pinisetty -v-Manikonda [2017] EWHC 838 (QB) Mr Justice Langstaff considered an issue relating to an appeal (and cross-appeal)  being out of time. Although the judgment on this issue is largely academic (the appeal failed in any event), it contains some important observations.

  1. I do not regard it as appropriate that one party, in default, should seek the agreement of the other party to an extension without making an application to the court for it, since it is the court’s obligation to consider and grant an adjournment. It is clear that a court’s jurisdiction does not depend upon the agreement of the parties and cannot be conferred by such an agreement, nor is a court simply to be used as if it were a rubber-stamp.”

THE CASE

The judge dismissed an appeal by the claimants.  The appeal was dismissed on the merits, however the judge also considered the issue of whether the claimant should have been granted relief from sanctions because the appeal was late.

THE JUDGMENT

The Cross-Appeal
    1. Having done so, I do not need to deal, except shortly, with the cross-appeal. The cross-Appellants argued that the Claimant was out of time in bringing her appeal in the first place and time should not have been extended to permit it to be brought. Given my conclusion on the substance of the appeal, this has become academic.
    2. However, the matter has been argued.
    3. The first point which arises is whether the Defendants are entitled to raise the cross-appeal: the Defendants are themselves out of time in bringing it.
    4. The relevant chronology is this. Judgment was given orally, with the parties in attendance, on Wednesday 13th July 2016. A transcript of the judgment was not supplied by the transcribers till 18th August 2017. At that stage, it was an uncorrected copy. It is not until 23rd October 2016 that the Judge was able to correct, revise and approve the judgment. On that date she also allowed an application by the Claimant, made earlier, to extend the time for submitting a notice of appeal. The Respondent lodged a Respondent’s notice and cross-appeal by means of tracked DX on 14thNovember 2016. This was within the time limit required under the CPR. However, the covering letter was addressed to the “Appeals Office, Chancery Division” instead of the “Appeals Office Queens Bench Division”. This was understandable, in my view, given the nature of the claim which had been made. Moreover, I observe, that the documents had been lodged with the court within the prescribed time.
    5. The court office neither forwarded the documents to the Queens Bench Division, nor returned them at the time, such that belatedly a replacement had to be filed.
    6. None of this is in contention. Evidence about it is given by a witness statement of 10th March 2017 subject to a statement of truth. Ms Sukhneel Kaur Goel accepts nonetheless in that witness statement that the criteria set out in Denton v White [2014] EWCA Civ 906 apply. She accepts that there was a breach but argues that it was neither serious nor significant, since the Appellant knew what the content of the Respondents’ notice was from their skeleton argument. Though this does not amount to a “good reason” under the test set out in Mitchell v News Group Newpapers [2013] EWCA Civ 1537, she asks in the interests of justice for time for appealing to be extended pursuant to CPR Rule 3.1(2)(a) because in these circumstances the breach was an oversight.
    7. In R (Hysaj) v Secretary of State for the Home Department [2015] 1WLR 2472; [2014] EWCA Civ 1633, the Court of Appeal held that an application under Rule 3.1(2)(a) for an extension of time for filing a notice of appeal should be approached in the same way and with the same rigour as an application for relief from sanctions under Rule 3.9, and hence I accept that the approach promulgated by Mitchell and Denton applies.
    8. The principles, as set out in paragraphs 40 – 41 of Mitchell and 24 of Denton are i) if the failure to comply with the relevant rule can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly; ii) if the failure is not trivial, the burden is on the defaulting party to persuade the court to grant relief; iii) the court will want to consider why the fault occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted, but merely overlooking the deadline is unlikely to constitute a good reason iv) it is necessary to consider all the circumstances of the case before reaching a decision, but particular weight is to be given to the factors specifically mentioned in Rule 3.9.
    9. Denton suggested a 3 stage approach should be taken when applying that guidance. First, a court should
“…identify and assess the seriousness and significance of the failure to comply with any rule… which engages Rule 3.9(1). If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate “all the circumstances of the case so as to enable [the court] to deal justly with the application..”
It is that more detailed guidance to which judges are now specifically directed to look (per Moore-Bick LJ at paragraph 38 of Hysaj.)
    1. Applying that guidance, in my view the failure is neither serious nor significant. I have had a full explanation of why the default occurred and, to my mind of particular relevance to the third stage, the default is in itself very low on any scale of culpability. The deadline was well in mind. Steps were taken to meet it. Those steps would have been effective but for what might be thought to be a misdirection of the form to the particular division of the court, albeit it was the court which in another division was entitled to receive the form. In all these circumstances of the case, I have therefore decided that time should be extended to receive the Respondents’ notice.
    2. Similar principles apply in dealing with the application for an extension of time, in favour of the Claimant, to which the cross-appeal relates. It is ironic that the cross-appeal seeks to deny the Claimant any extension for her appeal whilst seeking one for the cross-appeal itself.
    3. Mr Sawtell notes that the time limit for filing the notice of appeal following judgment of 13th July expired on 3rd August 2016. Time runs from the date of the decision. The parties knew the decision. Being represented by competent counsel, each had a note of the salient points. There was no reason why a notice of appeal could not have been made within the 21 days following the judgment. If it was thought one could not be made without considering the detail of the transcript, a formal application to extend time could have been made, but none ever was. The grounds of appeal and skeleton argument were dated 7th September 2016, 20 days after the uncorrected draft was received from the transcribers: but it is plain from this that the Claimant did not need to see the revised and approved transcript. The judge’s decision was erroneous. She recounted that checking by the judgment had taken time, and then, (paragraph 5) said
“I’m informed that the Appellant is in a position to lodge the notice of appeal immediately and given that the delay of correcting the judgment does not fall upon the Claimant in any way it is plainly just for the Claimant to be given an extension of time for the filing of the notice of appeal.”
    1. The notice of appeal had already been compiled and did not depend upon any corrections, as the judge implicitly should have recognised by recording that the Appellant was ready forthwith to lodge the notice. Her reasoning relates entirely, therefore, to a factor which had no effect in limiting the ability of or desirability for the Claimant appealing when she did.
    2. The judgment being in error, I would have been bound to allow the appeal had it still been material. The real question would have been the consequence of reaching that conclusion – namely, whether I should exercise my own discretion, or refer the matter to the first instance judge. Since the application relates to filing a notice of appeal before the appeal court, it would have been appropriate that I should do so.
    3. Applying the principles set out in Denton, as being applicable to an application such as this, Mr Sawtell reminds me that the appeal was not lodged for more than 2 and a half months after the expiry of the 21 day time limit. The appeal was not even lodged when it was prepared in September. The purpose of prescribing a 21 day time limit is so that those likely to be affected by any decision know quickly whether to adjust their expectations or not. The delay was thus considerable and significant. There was no good reason for it, particularly since the parties knew the detail of the judge’s reasoning since judgment had been given orally.
    4. Mr Benion-Pedley in response, tells me that it was clear at the end of the hearing that the losing Claimant intended to apply. The Claimant proposed in an email 26th July that there should be a “long stop date” by which the Claimant must bring her appeal, and suggested 19th August. On 4thAugust he sought a response to that email, not by then having had one. The next day (5th August) Mr Sawtell responded that he had no instructions to agree 19th August but that he would discuss this with his instructing solicitor.
    5. 19th August came and went.
    6. On 7th September, Mr Benion- Pedley emailed Mr Sawtell. In the course of that email he said
“You’ll need to tell me whether you require me to make a formal application in respect of the date for the Appellant’s notice but if so we shall be seeking our costs of doing so.”
    1. He enclosed draft grounds of appeal with that email.
    2. I do not regard it as appropriate that one party, in default, should seek the agreement of the other party to an extension without making an application to the court for it, since it is the court’s obligation to consider and grant an adjournment. It is clear that a court’s jurisdiction does not depend upon the agreement of the parties and cannot be conferred by such an agreement, nor is a court simply to be used as if it were a rubber-stamp.
    3. On 9th September, Mr Sawtell responded that his clients were not willing to agree to the extension. A week later, Mr Benion-Pedley proposed an order requiring the Claimant to bring her appeal by 23rd September and file her Appellant’s notice by that date. Both parties agreed that a hearing was not necessary. It was therefore that application which came before the court, though the date was amended to read “30th September 2016″ rather than 23rd.
    4. No reason has been advanced why the appeal could not have been brought within the 21 days time limit.
    5. With very considerable hesitation, in this case I would have granted relief from sanction. I would have extended time. I would have done so because permission to appeal had already been given (by the lower court). The vice to which Mr Sawtell referred – that of the parties not knowing if their rights were or were not in jeopardy from an appeal – does not arise, unless the length of time taken in context within which the appeal was lodged was significant or substantial. It is part of setting the context for that, in dealing with the first question I am required to address by Denton, that I think that the fact permission to appeal had already been granted was relevant. If so, it was desirable generally that any cross-reference in a notice of appeal, albeit that it should be in rare cases only where that is required, was to the perfected judgment. Though I have regard to the circumstances amongst which is that the Claimant was in a position to proceed on 7th September and did not do so, the appeal file would only be progressed in the appeal court once a perfected judgment was received at the court office. Given the clear message from the email traffic that the appeal was to be pursued, I have come to the conclusion that the delay was neither serious nor significant taken in context.
    6. I would not have found there to be any good reason for delay. It was never suggested by the Claimant herself that she was waiting for the perfected judgment, and that simply does not in any event stand with the chronology. The points Mr Sawtell makes are good ones, but cannot in the event answer the fact that not to extend time in these circumstances would be to rely heavily upon a formalism which had no meaningful or practical effect on either party or the progress of the appeal.
Conclusions
  1. It follows that I would have extended time to hear the appeal, and dismissed the Respondents’ cross-appeal: but in any event on the appeal itself I dismiss that appeal for the reasons I have given.