TIME FOR APPEALING: ANOTHER TRICKY POINT TO WATCH: TIME RUNS FROM THE DATE OF THE DECISION AND NOT ANY LATER DATE: A HELPFUL GUIDE TO THE PROCEDURE TO BE FOLLOWED

In McDonald v Rose & Ors [2019] EWCA Civ 4 the Court of Appeal highlighted an important point in relation to the time for appealing.  Time for appealing runs from the date that the decision is given, not a later date. The Court sets out a procedure to be followed if further time is required to consider whether to apply for permission to appeal.

“Ignorance of the rules will rarely, if ever, provide a good reason for failing to comply with them, especially where professionals are involved. I do not think that there was a good reason for the delay.”

The same conclusion must apply here.”

THE CASE

The claimants were appealing a decision of the Circuit Judge.  Judgment was handed down on the 9th March 2018.   The judge made directions when handing down judgment. On the 18th April 2018 the judge made a further order which, amongst other things, refused the claimants permission to appeal. The question was whether the time for appealing ran from the 9th March or the 18th April.

“THE PROCEDURAL HISTORY
  1. The judge handed down his written judgment on 9 March 2018 [2018] EWHC 445 (Ch). In accordance with the usual practice, on 7 March a draft judgment was circulated to the parties in advance of the hand-down. The parties were notified that the judgment would be handed down on 9 March and that attendance was not required.
  2. On 8 March the applicant’s solicitors wrote to the court to say that he was considering seeking permission to appeal. They asked the judge, when the reserved judgment was handed down the following day, “formally to adjourn the hearing to enable [the applicant] to apply for permission to appeal”. They did not seek any extension of the default 21-day time limit provided for in the Rules for filing an Appellant’s Notice with the Court of Appeal (see para. 10 below).
  3. On 9 March, having handed down the judgment in the absence of the parties, the judge, by an additional paragraph in his judgment, ordered written submissions on consequential matters “within 14 days of the handing down of this judgment [i.e. by 23 March]”. By email on 13 March the court notified the parties that the application for permission to appeal had been adjourned for 14 days from 9 March and was to be dealt with by way of written submissions.
  4. On 23 March the parties filed their written submissions in accordance with the judge’s order. The application for permission to appeal was only one of a number of consequential matters that the applicant addressed. In response, not only did the defendants oppose that application but they also, at para. 21 of their submissions, opposed any extension of time for the filing of an appellant’s notice beyond 30 March (i.e. 21 days after the date of the hand-down on 9 March). Despite this unequivocal warning, it appears that the claimant’s solicitors were not alerted to the risk that, without an extension, the 21 days expired on 30 March.
  5. Having considered the written submissions, on 18 April the judge (amongst other things) refused permission to appeal, and an order was made to that effect.
  6. On 9 May the applicant filed his appellant’s notice. That was the last possible day if the 21 days commenced on 18 April, but it was out of time if the 21 days had started on 9 March, a point made by the defendants’ solicitors in their letter of 17 May. On 21 May, the applicant sought to extend the 21-day period if that was necessary, although his primary position at that stage remained that the 21 days did not begin to run until 18 April.”

THE CORRECT PROCEDURE TO BE ADOPTED

The Court set out details of the correct procedure to be used. The authorities on this case were reviewed in detail.

THE CORRECT PROCEDURE
    1. It is the experience of the Court that the effect of the rules, as expounded in the authorities referred to above, is often not properly understood by would-be appellants. We think there is value in our summarising in this judgment the effect of those authorities and the procedure that ought to be followed in consequence by parties wishing to seek permission to appeal from the lower court (which is good practice though not mandatory). We would set the position out as follows:
(1) The date of the decision for the purposes of CPR 52.12 is the date of the hearing at which the decision is given, which may be ex tempore or by the formal hand-down of a reserved judgment: see Sayers v Clarke and Owusu v Jackson. We call this the decision hearing.
(2) A party who wishes to apply to the lower court for permission to appeal should normally do so at the decision hearing itself. In the case of a formal hand-down where counsel have been excused from attendance that can be done by applying in writing prior to the hearing. The judge will usually be able to give his or her decision at the hearing, but there may be occasions where further submissions and/or time for reflection are required, in which case the permission decision may post-date the decision hearing.
(3) If a party is not ready to make an application at the decision hearing it is necessary to ask for the hearing to be formally adjourned in order to give them more time to do soJackson v Marina Homes. The judge, if he or she agrees to the adjournment, will no doubt set a timetable for written submissions and will normally decide the question on the papers without the need for a further hearing. As long as the decision hearing has been formally adjourned, any such application can be treated as having been made “at” it for the purpose of CPR 52.3 (2) (a). We wish to say, however, that we do not believe that such adjournments should in the generality of cases be necessary. Where a reserved judgment has been pre-circulated in draft in sufficient time parties should normally be in a position to decide prior to the hand-down hearing whether they wish to seek permission to appeal, and to formulate grounds and such supporting submissions as may be necessary; and that will often be so even where there has been an ex tempore judgment. Putting off the application will increase delay and create a risk of procedural complications. But we accept that it will nevertheless sometimes be justified.
(4) If no permission application is made at the original decision hearing, and there has been no adjournment, the lower court is no longer seized of the matter and cannot consider any retrospective application for permission to appealLisle-Mainwaring.
(5) Whenever a party seeks an adjournment of the decision hearing as per (3) above they should also seek an extension of time for filing the appellant’s notice, otherwise they risk running out of time before the permission decision is made. The 21 days continue to run from the decision date, and an adjournment of the decision hearing does not automatically extend timeHysaj. It is worth noting that an application by a party for more time to make a permission application is not the only situation where an extension of time for filing the appellant’s notice may be required. It will be required in any situation where a permission decision is not made at the decision hearing. In particular, it may be that the judge wants more time to consider (see (2) above): unless it is clear that he or she will give their decision comfortably within the 21 days an extension will be required so as to ensure that time does not expire before they have done so. In such a case it is important that the judge, as well as the parties, is alert to the problem.
(6) As to the length of any extension, Brooke LJ says in Jackson v Marina Homes (para. 8) that it should normally be until 21 days after the permission decision. However, the judge should consider whether a period of that length is really necessary in the particular case: it may be reasonable to expect the party to be able to file their notice more promptly once they know whether they have permission.
  1. We should add for completeness that the authorities summarised above do not cover a third situation, namely where the judge announces his or her decision, with reasons to follow. That too will start time running, but it should be standard practice, unless there are very unusual circumstances, for the Court to adjourn the decision hearing and extend time under CPR 52.12 (2) (a) until a specified period, normally 21 days, after the reasons are promulgated.

THE CLAIMANTS’ FAILURE TO COMPLY WITH THE RULES IN THE CURRENT CASE

  1. In the present case, the applicant’s solicitors properly sought a formal adjournment of the hearing in advance of the hand-down. As is common, the subsequent permission application was subsequently dealt with on paper.
  2. Unfortunately, however, they failed to make any application to extend the 21-day period. This was despite the fact that the defendants’ solicitors had expressly anticipated just such an application, and warned the applicant’s solicitors that time expired on 30 March. Accordingly, the applicant was originally obliged to argue (through Mr Blohm’s skeleton argument) that the 21 days did not commence when the judge handed down the substantive judgment (9 March), but only on 18 April, when the order was made which included the judge’s refusal of permission to appeal.
  3. By the time of the hearing, however, Mr Blohm had accepted that this submission was unsustainable. In my view, he was right for three reasons. First, such a submission would mean that time would run from the date of the order, not the date of the substantive decision, which is contrary to Sayers v Clarke and the other authorities noted above. Second, it would negate the effect of Hysaj, because it would mean the application to adjourn the hearing automatically extended the 21 days. Third, such a result would be a contrivance. What the applicant wished to appeal was the substantive judgment, not the judge’s refusal of permission to appeal against that judgment. On any view, therefore, it is the date of the substantive judgment (i.e. 9 March 2018) that is the relevant date for the purposes of CPR 52.12 (2). In consequence, the appellant’s notice in this case was filed out of time.

WOULD THE COURT OF APPEAL GRANT AN EXTENSION OF TIME FOR APPEALING

The blunt answer is that we don’t know. The Court held that Denton principles applied, considered the relevance of the principles and then decided that it did not need to make an order because the appeal was going to be unsuccessful on its merits.  It is worth noting a few things.

The delay was held to be significant

  1. In his witness statement on behalf of the applicant, Mr Evans, the solicitor with conduct of the case, properly accepts at paragraph 29 that the delay of 40 days (30 March to 9 May) is serious. It is perhaps to be compared to the eight days (27 February-7 March) that it took the judge to produce his draft judgment.
  2. In our view the delay is also relatively significant. Whilst the applicant is right to say that it has caused no quantifiable prejudice to the defendants, that is only one element of the issue of significance. The defendants are individuals who have been through the emotionally-draining experience of a detailed trial about what is, at root, a family dispute. They would have been entitled to think that the whole process had finally come to an end on 18 April.

The Court was not over-sympathetic to the solicitor’s error

Nor was the Court that impressed with criticisms of the judge.

    1. The default occurred because the applicant’s solicitors failed to seek an extension of the 21-day period. For the reasons given above it should have been plain to them following Hysaj that the only thing that was adjourned was the hearing, and that the 21 days had not been extended.
    2. In Mr Blohm’s skeleton argument there was a certain amount of criticism of the judge. He suggested that the judge gave “informal and unclear directions by email which were liable to (and did) cause the parties real confusion”. We do not accept that. In our view the judge made it plain (in his judgment and in the email of 13 March) that the consequential matters (including permission to appeal) had been adjourned and were to be dealt with by way of written submissions. There was nothing in the judgment or the email which prevented the applicant’s legal advisers from realising on 8 March (or at any time before 30 March) that, without an extension, the 21-day period would run from 9 March.
    3. The only fair conclusion, therefore, is that the applicant’s solicitors misunderstood this part of the procedure and ignored or were unaware of Hysaj. That might be said to have been confirmed by the reference in paragraph 16 (4) of Mr Blohm’s skeleton argument in which he suggests that the email from the court confirming the adjournment was some sort of “trap”. A similar submission was made in Hysaj: it was roundly rejected by Moore-Bick LJ at paragraphs [22] and [52].
    4. Accordingly, the cause of the default is an inadvertent failure to comply with the rules. As Moore-Bick LJ also said in Hysaj, at paragraph [52]:
“Ignorance of the rules will rarely, if ever, provide a good reason for failing to comply with them, especially where professionals are involved. I do not think that there was a good reason for the delay.”
The same conclusion must apply here.”

All the circumstances of the case: this would have been borderline

  1. In a typical relief from sanctions case, it may be impractical for the court to embark on a detailed examination of the merits of the application for permission to appeal, unless the application appears either overwhelmingly meritorious or doomed to failure. In the present case, because of the way in which the application has been listed, this court is in a position to consider the merits of the application for permission to appeal more fully than would normally be appropriate. As appears below, we have come to the conclusion that the appeal would have no real prospect of success in any event. That being so, we need not reach a definitive view on relief from sanctions, to extend time for the making of a doomed application.
  2. However, we should say that in our view this would have been a borderline case for such relief even if we had been able to form no view on the merits. There are some points in the applicant’s favour: he always indicated that he might or would appeal; his solicitors followed the correct approach of seeking to adjourn the hearing as per Jackson v Marina Homes; the delay has not led to the incurring of disproportionate cost or had any specific adverse consequences on the defendants; and the applicant has also complied with the court’s directions generally. But, in the defendants’ favour, there has been a serious and relatively significant default which arose due to inadvertence, which is not a proper excuse, and which has prolonged a difficult family dispute which the defendants might have been entitled to conclude was over on 18 April 2018.