MORE ABOUT APPEALING MITCHELL DECISIONS OUT OF TIME: RELEVANT CASE LAW
A post yesterday considered the possibility of appealing, out of time, the unjust orders that may have been made following Mitchell and the subsequent “clarification” in Denton. There is some law on this topic, ironically it is a result of the last great procedure problem – automatic striking out. How far these principles remain relevant is open to debate, it may be that CPR 3.9 is the guiding light in appeals under the CPR. However the decision makes interesting reading.
AUTOMATIC STRIKING OUT
This rule was in the old county court rules. It provided for the automatic striking out of an action where a claimant (plaintiff in those days) did not request a hearing date within 15 months and 14 days of a defence being filed. It caused major problems. Over time the courts identified many exceptions to the striking out rule and various actions by the courts or parties took the action outside the rule. The Court of Appeal set out a series of principles it would consider in relation to allowing permission to appeal out of time.
THE GREIG MIDDLETON DECISION
The Court of Appeal was considering a case which had been held to be struck out by the lower court. However a subsequent Court of Appeal decision (that a request for an extension of time was an implied request for a trial) made the lower court decision wrong. The main issue was whether the plaintiff should have permission to appeal out of time.
6. Greig Middleton and Company Ltd v Denderowicz (CA 4th July 1997)
6.1 In this action, started in the Westminster County Court, the plaintiffs, who are stockbrokers, claimed over £10,000 from one of their customers in relation to transactions they had handled for him on the Stock Exchange. The defendant completed Form N9B in which he admitted that £204.50 was owing to the plaintiffs, but he otherwise denied the claim and stated that a fully pleaded defence was to follow. It was common ground that this form was received by the court by, at the latest, 30th April 1992.
6.2 The case was transferred to Gateshead County Court under Order 9 Rule 2(8). On 15th May 1992 that court erroneously issued a notice to the effect that the action had been referred to arbitration under Order 19 Rule 2(3) (whose current, amended, equivalent is Order 19 Rule 3(1)) and that there would be a preliminary hearing on 14th July. Shortly afterwards the court issued a further notice to the effect that the automatic directions applied and that these replaced this preliminary hearing. On 23rd July the defendant delivered a defence settled by counsel.
6.3 There then followed a long history of applications to the court. For reasons that will become apparent it is not necessary to go through this history. Suffice it to say that on 1st February 1995 Deputy District Judge Dodds decided that the action had not been automatically struck out, on the grounds that the plaintiff had applied for an extension of time before the guillotine date. The defendant unsuccessfully appealed to Judge Cartlidge and now, with the leave of a single Lord Justice, appeals to this court.
6.4 In the light of our decision in Bannister, the appeal was resisted on only two grounds.
6.5 First it was argued that the part admission in Form N9B (which is to be treated as the defence for the purpose of calculating the trigger date; see Bannister paragraph 6.8) meant that the action fell outside the provisions of Order 17 Rule 11, since Rule 11(1)(o) excepts from that Rule “an action to which Order 9 Rule 3(6) applies (admission of part of plaintiff’s claim).”
6.6 Order 9 Rule 3(6) on its face applies “where the defendant admits part of the plaintiff’s claim and the plaintiff notifies the proper officer that he does not accept the amount admitted.” In that event the rule prescribes an automatic transfer to the defendant’s home court and a special procedure for a pre-trial review or the fixing of a day for the hearing of the action. This is the reason why, when the sub-rule applies, the automatic timetable in Order 17 Rule 11 is expressly displaced. In its context the sub-rule is dealing with a case where the plaintiff is not prepared to accept an admitted sum in full satisfaction of his claim, in contrast to the earlier parts of Order 9 Rule 3, which deal with cases where the plaintiff is so satisfied.
6.7 In the present case the defendant sent a cheque to the plaintiffs for the amount he admitted was due shortly after the proceedings began. They accepted this as a payment on account, but they failed to notify the proper officer that the amount was not accepted as satisfying the claim. In those circumstances the proceedings did not become “an action to which Order 9 Rule 3 (6) applies” for the simple reason that one of the two conditions for the application of this sub-rule was not fulfilled (see, now, paragraph 16.7 of the revised version of Bannister).
6.8 The plaintiffs’ second ground for resisting the appeal was that the matter had been referred to arbitration by the court. This meant, they said, that the action fell outside the provisions of Order 17 Rule 11, being “proceedings which are referred for arbitration under Order 19.” (See Rule 11(1)(c) for the relevant exception).
6.9 Order 19 Rule 2(3), as it then read, provided that any proceedings in which the sum claimed or amount involved did not exceed £1000 “shall stand referred for arbitration by the district judge upon the receipt by the court of a defence to the claim, but the district judge may, on the application of any party, refer the proceedings for arbitration by the judge or by an outside arbitrator.”
6.10 The argument advanced to us was to the effect that this sub-rule (now to be found in Order 19 Rule 3(1) but with the higher limit of £3000) required the district judge to refer the matter to arbitration, and that this must have happened in the present case, so that there was by judicial act a reference to arbitration under Order 19 Rule 2(3), which accordingly took the action out of Order 17 Rule 11.
6.11 The short answer to this argument is that the words “the district judge” identify the person who is to arbitrate, not the person who is to refer the matter to arbitration. Were this not so, then the rule would not identify the arbitrator at all. The words “shall stand for arbitration” make it clear that provided the proceedings fall within the stipulated description, the matter will be arbitrated by the district judge without the need for an order to that effect, unless the district judge refers the proceedings to another arbitrator. In other words, in such cases the reference to arbitration is automatic, although later parts of Order 19 Rule 2 (as it then was) made provision for such a reference to be rescinded in certain circumstances.
6.12 In the present case the proceedings did not fall within the stipulated description, since the amount claimed was in excess of £1,000. Accordingly there could be no automatic reference to arbitration. The notice issued by the county court was not notice of any judicial determination that the matter should be referred to arbitration. It was simply an error on the part of an executive officer of the court who for some reason thought that there had been an automatic reference, an error which was corrected a few days later. It was not, and could not be, suggested that such an error could have the effect of referring the action to arbitration, whether under Rule 2(3) or otherwise. It follows that these proceedings were not referred for arbitration under Order 19, so that the action was not excepted for this reason from Order 17 Rule 11.
6.13 The judge considered that the action had not been automatically struck out for reasons which cannot now be sustained, as the plaintiffs accepted. Since we have rejected the only two grounds on which the plaintiffs now seek to uphold the judge’s judgment, it follows that this appeal is allowed.
7. Principles relating to extensions of time for appealing following a change in the law in Order 17 Rule 11 cases
7.1 In Note 59/4/4 of the Supreme Court Practice 1997 it is said, correctly, that it is entirely in the discretion of the court to grant or refuse an extension of time. Some of the decided cases which touch on different aspects of the exercise of this discretion may be helpful (subject to what we say below) in identifying the principles which the court should apply on an application to extend time, so as to bring about a measure of consistency. As the Note says, the factors which are normally taken into account are (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if time for appeal is extended; and (4) the degree of prejudice to the potential respondent if the application is granted. The original modern authority for these propositions is CM Van Stillevoldt BV v EL Carriers [1983] 1 WLR 207, to which we will refer again below. The point we wish to emphasise at this stage is that the extent to which a defendant may be entitled to rely on the fact that an appeal is now to be re-opened will depend on the facts of the individual case. If a decision has been made not to appeal, and the defendant is told of this, the fact that he may later have to face an appeal that he thought was not to be pursued is a factor of considerable weight to put in the balance in his favour.
7.2 We are here concerned with the exercise of the court’s discretion in relation to granting an extension of time for appealing where, following a decision at first instance, the applicant originally decided not to appeal. In each of the cases we have had to consider, either as a two-judge division or a three-judge division, the law has subsequently been clarified so as to demonstrate either that the original ruling was wrong or, at the very least, that there is a strong argument that it was wrong. We have therefore been referred principally to a line of cases concerned with applications to extend time for appealing following a later decision of an appellate court which demonstrates that the first decision was wrong, or may well have been wrong. It should be remembered in this context that judicial attitudes can change over the years, and at the end of the day each case will depend on its own facts. We would deplore the citation of authority designed to show the way in which other courts in the past have carried out the necessary balancing exercise on different facts, since the facts in no two cases are the same. Statements of principle are, however, important, and we are therefore setting out below the way in which this court has developed the relevant principles over the years.
7.3 In Craig v Phillips (1877) 7 Ch D 249, in the days when 12 months were allowed for an appeal against a final judgment, the plaintiff was seeking leave to appeal from a decision given against him on 4th April 1876. That was a final judgment disposing of the whole suit, and as Sir George Jessel MR put it:
“No fund remained in court, there were no accounts to be taken, the whole litigation was at an end. If the plaintiff meant to appeal, his appeal ought to have been brought within a year ….. thereupon subject to the judicial discretion of the Court of Appeal to enlarge the time for appealing, the right of the defendant under the judgment of the Vice Chancellor was complete.”
7.4 A judgment was then given in the Court of Appeal in a different case on 2nd June 1877 in which one member of the court, the Lord Chief Justice, described the judgment in Craig v Phillips as erroneous. After referring to the lack of unanimity in that court, Sir George Jessel MR then said:
“But even going further, and supposing that there had been an unanimous opinion of the Court of Appeal in accordance with the view of the Lord Chief Justice, I think it would have made no difference with regard to the present application. It would only have come to this, that more than a year after the decision in Craig v Phillips the Court of Appeal had come to a different decision on a vexed point of law. In my opinion that is not sufficient ground, in the absence of very special circumstances, to deprive a man of a judgment which has been given in his favour. I can understand a different view being taken in cases where the time limited for appeal is very short, as in appeals under the Winding-up Acts, and where accounts are still pending and the assets undistributed; in such a case a creditor whose proof had been refused might be allowed further time to appeal; but the same considerations do not apply to a case like the present. There are no special circumstances at all in this case; and it does not appear to me that the rights of the defendant ought to depend on the accident that this vexed point of law was differently decided after the expiration of the year allowed for appealing.”
7.5 At the end of his judgment he also referred to the plaintiff’s delay following the judgment of the Court of Appeal, and said:
“That is sufficient to dispose of this application. But I think it ought also to fail on the ground of the applicant’s delay in making it. The judgment in Twycross v Grant 2 CPD was delivered in June, 1877, after the year for appealing had already expired. That judgment was not delivered secretly or in an unimportant case. On the contrary, it was immediately reported in the public journals, and it must have been known to every member of the profession who took an interest in the subject. I cannot therefore leave out of consideration the time which elapsed between the delivery of that judgment and the present application. I do not think the plaintiff has shewn due diligence in coming to the Court on the 15th December, on account of a decision delivered on the 2nd of June; and of course any person who comes to ask the Court to relax the provisions of the rules in his favour, must shew great diligence, and not unnecessary delay, in doing so.”
7.6 Baggallay and Thesiger LJJ agreed with him, and both used the language of the necessity for “very special circumstances” to be shown before exercising the court’s judicial discretion to enlarge the time.
7.7 In Esdaile v Payne (1888) 40 Ch D 520 the situation, in broad terms, which faced this court was that some defendants had appealed against the decision of the judge at first instance and others had not. Those that appealed lost in the Court of Appeal but then succeeded in the House of Lords. Following their success in the House of Lords, some of the others sought leave to appeal. Cotton and Bowen LJJ originally granted leave on the basis that it would be most unjust for the defendants who had not appealed to have to pay the tithes which were the subject of the litigation when in that very litigation it had been decided that they were in fact not so liable. But before their order was drawn up, the matter was re-argued when a further defendant who had not so far appealed applied for leave, and when some further evidential material had become available. This new evidence demonstrated that third parties had probably acted vis a vis the defendants who had not appealed on the basis that they were not going to appeal. This possible change of circumstance was enough to lead the court, now composed of Cotton, Lindley and Lopes LJJ, to refuse leave to appeal. In refusing leave, however, Cotton LJ said he was not sure that the first decision was right, now that fuller argument had been heard, and Lindley LJ added:
“It may appear harsh that these Defendants should be bound by a decree which the House of Lords has decided to be wrong, but the more I consider the matter, the more I think it just. Suppose an action for tithes brought against six holders of property, and a decree made against them all. Five out of the six submit and allow the time for appealing to expire. It is important that a state of things so brought about should not lightly be disturbed. The sixth Defendant is bolder; he appeals; and at last he obtains from the House of Lords a decision in his favour. The other five then naturally wish to appeal. What ought to be done? In my opinion it is for the interest of the public that litigants should know as soon as possible when certainty has been reached, and that if people have deliberately elected to let the time for appealing go by, the Court should not give them leave to appeal without special circumstances. I make these remarks because I wish that there should be no doubt as to the general principle.”
7.8 In In re J Wigfull & Son’ Trade Marks [1919] 1 Ch 52 Neville J at first instance had rectified the register, removing the respondents’ trade mark. Three years later the Court of Appeal dissented in a different case from the view that that judge had adopted in relation to the construction of the Trade Marks Act 1905. The plaintiffs then applied for leave to appeal out of time. Although the earlier cases were cited to him, Swinfen Eady MR stated the relevant test in the following simple terms:
“The court has power to enlarge time for appealing if it is just that under the circumstances an order enlarging the time should be made.”
7.9 He then referred to the fact that others might have used the mark in reliance on Neville J’s original decision over the three years since that decision was made, and to the fact that the only excuse for not appealing at the time was that a relevant decision of the Court of Appeal had been given later. The court refused leave, Eve J referring to the well settled rule that:-
“the mere fact that a subsequent opinion of this court shows that a judgment of an inferior court was wrong gives no ground for enlarging the time.”
7.10 In Re Berkeley [1945] 1 Ch 1, a slight softening of approach may be detected. In May 1943 Cohen J decided that on the basis of a recent judgment of Simonds J an annuity in favour of Lady Berkeley was payable free of tax. No appeal was brought in time. In 1944 this court overruled Simonds J’s decision in the earlier case, and in October of that year an application for leave to appeal out of time was made by beneficiaries of the will who might receive nothing if Lady Berkeley received her annuity without deduction of tax. Lord Greene MR cited In re Wigfull & Sons’ Trade Marks and put the matter in this way:
“I find no difficulty in reconciling the statement that the different decision is not necessarily a ground for enlarging the time with the statement that the court can enlarge the time if it is just in the circumstances to do so. It seems to me that the principle to be extracted is that it is not sufficient for a party to come to the court and say that a subsequent decision of a superior court has determined that the principle of law on which his case was decided was wrong. The court will say to him: “That bald statement is not enough. What are the facts? What is the nature of the judgment? Who are the parties affected? What, if anything, has been done under it?” and so forth. In other words, the whole of the circumstances must be looked at. If the court in the light of those circumstances, considers it just to extend the time, then it will do so.”
7.11 In Ward v James [1966] 1 QB 273 Sellers and Russell LJJ granted leave to appeal out of time in November 1964 from an order made by Roskill J in July 1963 directing trial by jury in a personal injuries action. The defendants did not seek to appeal against the order when it was originally made, but they did so after three decisions of this court had cast doubt on the proposition that it was right to order trial by jury in a personal injuries action when the injuries were severe. In granting leave to appeal out of time Sellers LJ said at p 278 that he recognised that a mere alteration in the law might not be sufficient ground for extending time. However, the authorities cited to the court were all cases of appeals against a final judgment, and they were not therefore applicable to an interlocutory appeal of the present character, particularly where the form of the trial was an issue and the action was still some way from reaching trial. In the event a five-judge court, while giving general guidance on the way the discretion to order jury trials should be exercised, affirmed the judge’s order because of the defendants’ acquiescence in it for many months and the lateness of their appeal.
7.12 Lord Greene’s approach in Re Berkeley was followed in Property & Reversionary Ltd v Templar [1977] 1 WLR 1223. In that case Judge Edgar Fay QC held in November 1974 that since landlords had failed to comply with the strict letter of a rent review clause, their tenant was entitled to go on paying the original rent until at least the time of the next rent review, which was due to take place in 1979. In March 1977 the House of Lords cast doubt on the necessity for strict compliance with the wording of a rent review clause in a similar context. After citing Lord Greene’s judgment in Re Berkeley Roskill LJ said:-
“It is therefore plain that it is not enough for [counsel] to say that the recent decisions of the House of Lords clearly show that Judge Fay’s decision was wrong. He must show there are special reasons why he should be allowed to argue that the judgment should not stand.”
7.13 The landlords were willing to undertake not to claim back rent for the two and a half years which had elapsed since Judge Fay’s decision, and the issue in dispute was therefore limited to the question whether the landlords should be entitled to argue in this court that they should be entitled to recover the higher rent for the 18 months until the next rent review, or whether they should have to wait until that review before being entitled to increase the rent. Roskill and Cumming Bruce LJJ concluded that the continuing contractual relationship provided the necessary special circumstances for allowing the landlords leave to appeal out of time. As Cumming Bruce LJ said, “it does not seem just that future obligations between the parties to the lease should depend upon the construction now shown to be wrong.”
7.14 In CM Van Stillevoldt v EL Carriers [1983] 1 WLR 207 Griffiths LJ was concerned with an application for leave to appeal out of time from a decision of Staughton J that he had no jurisdiction to extend the time of appointment of an arbitrator. The Registrar of this court had refused an extension of time, relying inter alia on the fact that this was the second time that the would be appellants were craving indulgence, the whole case being concerned with the late appointment of the arbitrator. Griffiths LJ held at p 213 that the Registrar was entitled to take that fact into account, but in the exercise of his own discretion he extended time, holding that the delay was short (days not weeks); there were personal reasons of the solicitor (the burden of work and his wife’s illness, plus, for some short part of the delay, being lulled into a false sense of security by the opposing solicitors); there was certainly an arguable case on appeal; and, finally, there was no question of the opposing side being prejudiced “save for this fact of course, that they will now have to face the appeal rather than the [would be appellants] having the door slammed in their faces at this stage.”
7.15 In Note 59/4/4 of the Supreme Court Practice this dictum is taken as authority for the proposition that “the fact that a judgment or order will be re-opened if the application is granted does not count as prejudice for these purposes, because that is inherent in every application for an extension of time.” What Griffiths LJ said does not seem to us to be correctly reflected in this Note, which should be approached with some caution. It may well be that where the delay in appealing is as short as it was in that case, the fact that the case will be re-opened will carry little weight, but the longer time goes by, particularly if the defendant has been told, or reasonably assumes, that no appeal will be pursued, the greater the weight that will be attached to this factor.
7.16 In Norwich & Peterborough Building Society v Steed [1991] 1 WLR 449 this court was concerned with an applicant who was seeking leave to appeal six and half months out of time. The whole of that period had been taken up with his efforts to obtain legal aid. It was a case in which, as McCowan LJ pointed out, he always intended to appeal. At the outset of his judgment McCowan LJ said that the things which a court takes into account in deciding whether to grant an extension are “first, the length of delay; secondly, the reasons for the delay; thirdly, the chances of the appeal succeeding; and, fourthly, the degree of prejudice to the respondent if the application is granted.” After weighing up the different factors in that case, the court granted leave to appeal out of time.
7.17 In re Winston Lloyd Dennis (a Bankrupt) CAT 27 October 1993, judgment at first instance was given in May 1992, and the unsuccessful party decided not to appeal. In February 1993 counsel by chance came across an 1801 decision which was highly relevant to the issues in the case. He drew this decision to the attention of his instructing solicitors and suggested that different counsel should now be instructed. The solicitors applied for legal aid the next day, and emergency legal aid was eventually granted on 22nd March 1993. On 14th April 1993 new counsel was instructed, and the application for leave was made on 23rd April 1993. The court considered the four factors identified by McCowan LJ in the Norwich and Peterborough case. After showing that the court had been referred to Craig v Phillips and Templar, Sir Thomas Bingham MR said that he thought it was important that the case was not one “in which a party seeks to appeal because a later decision throws doubt on the decision in question, but is an application made for the reasons I have indicated, that through a failure to discover an old authority the case was put to the judge on a basis that may have led to a wrong decision.” He finished his judgment by putting the matter in this way:
“One starts from the position that it is the duty of the parties to appeal within the time limit and therefore the court does not by any means as a matter of course, and indeed at all readily, grant leave to appeal out of time. It particularly does not do so if the party has taken a decision not to appeal and has then changed its mind. But ultimately, and overriding or embracing all the factors which go into the exercise of discretion on a matter of this kind, is the question as to what the interests of justice require on the facts of a particular case.”
7.18 Although certain properties had been sold since the judgment at first instance, the proceeds of sale remained undistributed and there was thus “no relevant prejudice”. The court therefore upheld the Registrar’s decision to grant leave to appeal out of time.
7.19 The only other rulings we need to mention are three which have been very recently given in the context of Order 17 Rule 11. In Seagaram v Grant CAT 16th December 1996, this court was concerned with a boundary dispute between neighbours in which substantial costs had already been incurred. On 14th June 1995 the judge held that the action had been automatically struck out, and the plaintiffs decided not to appeal. Instead an unsuccessful application was made to reinstate the action. New solicitors were instructed on 23rd October 1995, and they sent instructions to counsel in early December to consider the claim against the first solicitors. Through quite exceptional personal circumstances counsel did not deal with the papers until May 1996. At this stage she appreciated that on the authority of Downer, which was reported in The Times on 19th January 1996, the judge’s original decision that the case had been struck out was wrong. An application for leave to appeal was then lodged ten months out of time. (It is right to add that a second action could have been started, but a question would have arisen as to whether the costs of the first action would have to be paid if this second action was not to be stayed).
7.20 This court granted leave to appeal out of time. Lord Woolf MR said at page 6 :-
“It is of course always difficult in a situation of this sort to find the proper balance. However, on the facts that are before this Court, I am satisfied that the balance comes down in the plaintiffs’ favour. The period of delay is undoubtedly substantial. It is a period where the Court would normally today want very clear reasons for giving that length of extension, and, speaking for myself on this matter, it does seem to me that one would normally expect this to be the maximum amount of delay which one could ordinarily regard as being acceptable to this Court if the answer to the other issues to be considered point to an extension of time.”
7.21 Sadiq v London Buses Ltd CAT 20 February 1997 was a case in which negligence had been admitted: it was therefore a meritorious claim. On 17th May 1995 the judge held that it had been automatically struck out. This court’s decision in Ferreira was published in The Times on 30th June 1995 and it showed that the judge’s decision was wrong. The plaintiff’s solicitors took immediate steps to try to protect their client, but they adopted the wrong route by asking the judge in the county court to rectify matters. That application failed on 20th September, and leave to appeal was sought from this court within a fortnight of that date. Leave to appeal out of time was granted. Brooke LJ said at page 6 :-
“In my judgment the circumstances in which Roskill LJ spoke as he did in the Templar case are quite different from the present, where the delay is comparatively short, the reason for the delay has been explored, which, although it shows a lack of understanding by the plaintiff’s solicitor of the nature of the court’s inherent jurisdiction, nevertheless shows a commendable desire to save time and costs involved in bringing an appeal to this court, and we are concerned with comparatively new provisions of the County Court Rules which this court is working out on a case-by-case basis, and, in the context of this case, by chance the relevant decision was taken shortly after the judge made his ruling in this case.”
7.22 In Noviello & another v Ele International Ltd & another CAT 20th February 1997, the plaintiffs had applied for an extension of time for requesting a hearing date on 28th July 1994. The guillotine date was 14th August 1994, and in November 1994 the district judge extended time. The plaintiffs out of caution issued a second set of proceedings on 22nd December 1994. On 30th March 1995 the judge reversed the district judge. He held that the action was struck out, and he refused to reinstate it. On 30th June 1995 the decision in Ferreira was published in The Times which showed that the first of these rulings was wrong. The application for leave to appeal was not made until 5th September 1995. (The second action was struck out under Order 9 Rule 10 on 22nd December 1995, no steps having been taken to pursue it).
7.23 The plaintiffs’ advisers put forward no explanation for the two months’ delay between the decision in Ferreira and the lodging of the application for leave, and in his judgment Brooke LJ stressed that such delays ought to be explained. However, given that the process of straightening out whether it was right to appeal to this court following the decision in Ferreira was a complex one and the long vacation had intervened, he considered that the overall interests of justice required that the application should not fail simply because no reasons were given. In the result the court granted leave to appeal out of time, and the subsequent appeal was immediately conceded.
7.24 Counsel for the defendants have submitted to us that in the last three cases, where an extension of time for appealing has been granted following authoritative rulings by this court in relation to Order 17 Rule 11, the court has been failing to have proper regard to the principle that a change in the law does not in itself provide a ground for extending time for appealing. They have also pointed out that now that Bannister has been decided, there may be a flood of applications for leave to appeal out of time, and a firm stand should be taken by this court if it is not to be once again swamped with satellite litigation of a type of which it disapproves so much.
7.25 In our judgment it would be quite wrong to contemplate taking an approach which was dictated simply by the fear that there might be too many cases arriving at this court which would otherwise justify the granting of leave to appeal if the proper principles were applied to them. The right course is to attempt to identify whether there are indeed any circumstances in which an extension of time for leave to appeal should in justice be given in such cases. If there are, then it ought to be possible to give guidance to parties contemplating the possibility of applying for leave to appeal out of time which will lead in some cases to the application for leave not being resisted and in others to there being no attempt to obtain it. In that way it is to be hoped that satellite litigation will be discouraged, but in a way that does not add to the possible feeling of injustice that might otherwise exist.
7.26 It is important to recognise two matters in relation to Order 17 Rule 11 cases. The first is that the rule has led to actions being struck out where there has been no trial on the merits. In other words, this is a quite different context in which to apply the general principle that there must be finality in litigation. Second, it is difficult to imagine circumstances more special than those which have flowed from the introduction of Rule 11(9). The difficulties that the rule has created are manifest from the many decisions of this court on the meaning and effect of the rule, and there have certainly been significant areas of dispute where there was room for more than one legitimate view as to the appropriate construction of the rule, or as to the approach the court should take in relation to different factual situations. For example, in the months that followed the decision in Rastinit was not readily foreseeable that Williams v Globe Coaches would provide an exception to Rastin. It was not easy to foresee the decision in Ferreira. And there will be aspects of Bannister where it may be possible to show that advice not to appeal against a judge’s ruling was completely reasonable advice at the time it was given. Accordingly, if a party can show that he acted on reasonable advice in the context of Order 17 Rule 11, and that he did not appeal immediately in reliance on that advice, and if he can also show that if an extension of time for appealing were granted he has a very strong argument that his appeal will succeed, then there will be the beginnings, in our view, of a successful application for an extension of time on the basis of special circumstances.
7.27 However, an extension of time for appealing will not on any view be given automatically in Order 17 Rule 11 cases following a change in the law. Among the factors which will strongly militate against the grant of such an extension are the following:
(a) if there is any inexcusable delay in applying for an extension of time. The period for serving a notice of appeal in the ordinary way is 28 days. Order 17 Rule 11 cases are concerned with situations in which substantial delays have already occurred. There is no reason why every effort should not be made to lodge an application within that timescale once a relevant change in the law has been reported, and to notify the potential respondent as soon as it has been lodged. For example, an applicant will have to explain why he could not lodge the application without legal aid, and/or why, if it can be shown that it was necessary to have legal aid before lodging the application, he could not obtain it for that purpose (even if the pursuit of the appeal was ultimately dependent on advice for which further legal aid was necessary), and why he did not tell the respondent what he had in mind at the earliest practicable moment. The plaintiffs in Seagaram and Sadiq were exceptionally fortunate. In Seagaram, however, there was the added feature that in any event the boundary dispute was continuing and another action could still be launched at any time, and in Sadiq the plaintiff had started a second action, so that the finality of the litigation on the strike-out was not absolute.
(b) if the respondent can demonstrate that any third party might be affected by the reopening of the litigation.
(c) if the respondent can demonstrate that he or his insurers have reasonably acted on the basis that the claim is at an end and their affairs have been conducted on this basis or if prejudice has been suffered in any other way. The respondent should normally adduce the evidence of the conduct or prejudice on which he relies. The longer the time since the decision which is now sought to be challenged, the easier it will be for him to discharge this burden. There will be a strong presumption, which would not require any evidence unless the contrary is asserted, that the respondent or his insurers have conducted themselves on the basis that the litigation is over if they have received no notice of any intention to continue to pursue it for many months after the decision was made. In this context, again, if it can be seen that the dispute between the parties is a continuing one and can still be the subject of a further action, this will be a material factor to counter any claim the respondent might make that he had assumed the claim had been finally disposed of and conducted his affairs on that basis.
(d) if the plaintiff has actually pursued a second action, causing the respondent to incur costs in defending it. In such cases, however, if there has been no application to stay the second action until after the costs of the first have been paid, it would be legitimate in any application made in the second action not to insist on the costs of the first action being paid as a basis for allowing the second action to continue if it could at the time of that application be seen that the first action should in fact never have been held to have been struck out.
(e) (as we have already indicated but it is important to emphasise again) unless the would be appellant has a very good prospect of succeeding on the appeal, if an extension of time for appealing is granted.