OUT OF TIME APPEAL ALLOWED BECAUSE OF ITS UNDERLYING MERITS: DENTON CONSIDERED

For the second time in two days I am writing about a relief from sanctions case where the court took into account the merits of the underlying case.  Yesterday relief was refused because the court held that the case had no merits,  in FF v BM [2020] EWFC B6 HHJ Middleton-Roy considered that the merits of a proposed appeal were a significant factor and this led to relief from sanctions being granted.

“Having regard to all the circumstances of the case so as to enable the Court to deal with the application for relief from sanction justly, including having regard to the merits of the appeal, the paramount consideration being the welfare of the child, this Court must conclude that the Appellant be granted relief from sanction. The Court is compelled to extend the time for the Appellant to file his Appellants notice.”

THE CASE

The applicant appealed against a decision of the Magistrates’ Court allowing him only indirect access to his children.  The time limit for appealing was 21 days. The appeal should have been filed by the 8th January 2020, it was filed on the 26th February 2020 – 7 weeks out of time.  A retrospective application to extend time was sought.

THE APPROACH OF THE COURT

The judge held that this was a case akin to relief from sanctions. ”

“A party who is out of time for filing an Appellant’s Notice is subject to an implied sanction, namely the loss of the right to pursue an appeal. Where an application is made to extend time and that application itself is made out of time, the Court should approach it on the basis that it is an application for relief from sanction.”

THE APPLICATION OF THE DENTON TEST IN THE CURRENT CASE

The judge considered the three stages in Denton.  He held that the breach was significant and that there was no good reason for the delay.
  1. In Denton and Others -v- TH White limited [2014] 1 WLR 3926 the Court of Appeal identified a 3-stage approach to applications for relief from sanctions in the context of the Civil Procedure Rules. Such approach is of assistance also in respect of applications for relief from sanction in the context of family proceedings.
  2. The first stage is to identify and assess the seriousness or significance of the failure to comply with the Rule, Practice Direction or Court Order which engages the sanction. If a Judge concludes that a breach is not serious or significant, then relief from sanction will usually be granted and it will be unnecessary usually then to spend much time on the second or third stages. If, however, the court decides that the breach is serious or significant, then the second and third stages assume greater importance.
  3. The second stage is not derived from the express wording of the rules but it is nonetheless important particularly where the breach is serious or significant. The Court should consider why the failure or default occurred.
  4. The third stage requires that in every case, the Court will consider all the circumstances of the case, so as to enable it to deal justly with the application. All the circumstances include but are not limited to those factors expressly set out in Family Procedure Rule 4.6.
  5. On the facts of the case, the failure of the Appellant to file an Appellant’s Notice in time was plainly a serious or significant failure to comply with the Court rules.
  6. In seeking to explain the reasons for that significant failure, the Appellant asserts that, immediately following the final hearing, he was advised by Counsel orally that there were no grounds for appealing the decision of Court. No written advice was provided. The Appellant asserts that he then had difficulty in obtaining legal advice over the intervening public holiday period. The Court is informed that Appeal Counsel was then identified, Miss Baruah helpfully providing the Appellant with advice on the appeal and drafting the Grounds of Appeal on a pro bono basis. The Court is told that the Appellant then borrowed money to instruct his new solicitors to file the Appellant’s Notice. On the evidence before me, I am not satisfied that good reason has been provided by the Appellant for the failure to file the Appellant’s notice in time.
  7. I turn to consider the third stage in the application for relief from sanction by giving consideration to all the circumstances of the case so as to enable the Court to deal with the application justly. In considering all the circumstances, regard is also had to the merits of the appeal.

THE MERITS OF THE APPEAL

The judge held that the appeal had considerable merits and this was relevant to the “third stage” in the Denton test.

  1. The conclusion of the Justices has been shown to be plainly wrong. The evidence contained in the letter from Home Office has been entirely misunderstood or misevaluated and weighed up so inadequately that the conclusion reached must be regarded as perverse. The Court is compelled to interfere.
  2. Having regard to all the circumstances of the case so as to enable the Court to deal with the application for relief from sanction justly, including having regard to the merits of the appeal, the paramount consideration being the welfare of the child, this Court must conclude that the Appellant be granted relief from sanction. The Court is compelled to extend the time for the Appellant to file his Appellants notice.

The judge then considered, and granted the appeal.