DENTON CONSIDERED: EXTENSION ALLOWED WHEN NOTICE HAD GONE INTO SOLICITOR’S SPAM FOLDER

March 26, 2019 · by · in Appeals, Civil Procedure, Relief from sanctions

In Adetoye v The Solicitors Regulation Authority [2019] EWHC 707 (Admin) Mr Justice Mostyn allowed an appellant an extension of time when a notice of appeal was served late.  The  delay was because the appellant had not noticed the order appealed against because it was diverted to his spam folder. If nothing else this should remind us to check our spam folders more regularly.

 

THE JUDGMENT

    1. On 9 October 2018 the Solicitors Disciplinary Tribunal (SDT) announced certain findings against the appellant; suspended him from practice for two years; and ordered him to pay 12.5% of the SRA’s costs with an interim payment on account of £7,184.75. The SDT’s written judgment was produced and served on 11 December 2018. The 21 day period in which to file a notice of appeal expired on 2 January 2019, but the notice itself was not filed until 10 January 2019, nine days late. Mr Ramsden QC, for the respondent, argues that permission to file the notice out of time should not be granted.
    2. The reason for the delay was that the SDT judgment was diverted into the appellant’s spam folder. It did not come to his attention until 24 December 2019. The intervention of the holiday period meant that he could not instruct counsel until after the New Year. Once he did so the notice of appeal was prepared as soon as possible but ended up being filed nine days late.
    3. In Altomart Limited v Salford Estates (No 2) Ltd [2014] EWCA Civ 1408, [2015] 1 WLR 1825 Moore-Bick LJ at [15] held that an application for permission to appeal out of time is analogous to an application under CPR rule 3.9 and is therefore to be decided in accordance with the same principles. Therefore, I must conduct the three-stage exercise set out in Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906, [2014] 1 WLR 3926 at [24] where Vos LJ stated:
“A judge should address an application for relief from sanctions in three stages. The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” 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.
  1. I do not regard the nine-day delay which accrued over the holiday period as being particularly serious. The reason for the delay was the banal failure of the appellant to check his spam folder. I do not particularly criticise him for that. No injustice is caused to the respondent if I proceed to hear the merits of the appeal. Indeed, Mr Ramsden QC has fully addressed both in writing and orally. Accordingly, I grant the necessary extension of time
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