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.