EXTENSION OF TIME TO APPEAL REFUSED: HIGH COURT DECISION TODAY

In the judgment today in Jamous v Mercouris [2020] EWHC 2814 (QB) Mr Justice Murray refused a claimant’s application for permission to appeal out of time.  It is a reminder that applications of extensions of time to appeal are dealt with on Denton/CPR 3.9 grounds.

 

THE CASE

The claimant was bringing an action against the defendant alleging negligence in the handling of a personal injury case where the defendant assisted as a legal adviser.  The action had been struck out following an order from a Master.  There had been some delay in the filing of the appellant’s notice , it was considerably out of time.

 

THE JUDGMENT
The application for an extension of time to appeal
    1. The Court of Appeal set out the principles that the court should apply when considering an application for an extension of time to file an appellant’s notice in R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, [2015] 2 WLR 2472. The key principle is that such an application should be approached in the same way and with the same rigour as an application for relief from sanctions under CPR rule 3.9.
    2. In Hysaj at [36], Moore-Bick LJ said:
“… As the authorities demonstrate, for the past 12 years it has been consistently understood that in the Sayers case [2002] 1 WLR 3095 this court deliberately equated applications for extensions of time for filing a notice of appeal with applications for relief from sanctions because in its view the implied sanction of the loss of the right to pursue an appeal meant that the two were analogous. Following the decision in the Mitchell case [2014] 1 WLR 795 the courts have continued to proceed on the basis that applications for extensions of time for filing a notice of appeal should be approached in the same way as applications for relief from sanctions under CPR r 3.9 and should attract the same rigorous approach. It might even be said that the decision in the Mitchell case has provided an independent basis for a similar approach to applications of that kind. The clearest example is perhaps to be found in Baho v Meerza [2014] Costs LR 620, to which I have already referred. Whatever one may think of the doctrine of implied sanctions, therefore, particularly in the light of the views expressed by the Privy Council in the Matthews case [2011] UKPC 38, I think that the approach to be taken to applications of the kind now under consideration is now too well established to be overturned. It follows that in my view the principles to be derived from the Mitchell case and the Denton case [2014] 1 WLR 3926 do apply to these applications.”
    1. CPR rule 3.9 provides:
3.9— Relief from sanctions
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—

(a) for litigation to be conducted efficiently and at proportionate cost; and

(b) to enforce compliance with rules, practice directions and orders.

(2) An application for relief must be supported by evidence.”
    1. The cases of Mitchell v News Group Newspapers [2013] EWCA Civ 1537[2014] 1 WLR 795 and Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926 are the leading cases on the proper approach to an application for relief from sanctions. The relevant test is summarised in the Denton case at [24] as follows:
“… 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 including [factors (a) and (b)]’. … .”
    1. In the Appellant’s Notice, Mr Jamous gave the following reasons for the delay in filing the Appellant’s Notice:
“On the 30th January 2019 the 2nd Claimant who was conducting these proceedings, as I do not have capacity (certificate has been filed with the court), went before Mr Justice Waksman. At this hearing she brought to his attention the fact that she had only filed one appellant’s notice [in relation to her appeal against the order of Master Thornett dated 19 July 2018] but had made it clear the wish for both applications for permission to appeal the 1st and 2nd Claimant, to be heard on the same day. She informed the judge that she believed it to be a waste of public monies to make a separate application, as both the 1st and 2nd Claimant were fee exempt. She had also made it clear that if absolutely necessary she would make a separate application on behalf of the 1st Claimant after obtaining a further fee exempt certificate. The 2nd Claimant has [illegible]. Mr Justice Waksman verbally indicated to the 2nd Claimant it was correct not to obtain a further certificate, however did not address this at all in his order. This gave us reason to believe both applications would be heard on the same day. I was given a further 2 weeks to submit this application.”
    1. In his email to the court dated 30 September 2020 in which he made his informal application to adjourn this hearing, Mr Jamous had the following to say about the delay in filing his Appellant’s Notice:
“I was out of time with my application because my mother wrongly believed that both applications could be heard at the same time as explained in the judgment of Mr Justice Stewart. My mother also suffers from stress and anxiety and was attempting to act in my best intertest and not [incur] unnecessary costs by making a separate application for a fee exempt certificate. This was verbally agreed by the judge. However it turns out this was not acceptable therefore my application was late which was no fault of my own.”
    1. Applying the test set out in the Mitchell and Denton cases, as summarised above, the first question to consider is whether Mr Jamous’s delay in filing the Appellant’s Notice was a serious and significant breach of CPR 52.12(2), which stipulates the time period within which an Appellant’s Notice must be filed. The 18 December Order was made on 18 December 2018. The Appellant’s Notice should have been filed within 21 days of that date. It was, however, not filed until over two months later, roughly seven weeks late.
    2. Had the Appellant’s Notice been filed on time or even late but by the end of January 2019, then it would have been possible for both appeals to have been heard by me on 14 February 2019, which would clearly have been in the interests of justice and in accordance with the overriding objective, in particular, the objectives of dealing with both appeals expeditiously and at proportionate cost.
    3. The filing of the Appellant’s Notice roughly seven weeks late was clearly a serious and significant breach of the relevant rule.
    4. The next question to consider is whether there was a good reason for the Appellant’s Notice having been filed so late. I have summarised Mr Jamous’s reasons for the delay above. Notably absent is any explanation from Mr Jamous as to why the Appellant’s Notice was not filed by 9 January 2019. The reasons given by Mr Jamous focus almost completely on what Mr Jamous’s mother believes that she was told by Waksman J at the hearing before him on 30 January 2019. Mrs Jamous had, however, been reminded by Martin Spencer J nearly two weeks earlier on 17 January 2019 that her son was already out of time to file an Appellant’s Notice and that, if he intended to seek permission to appeal and for an extension of time, he “should do so as soon as possible”. It is hard, therefore, to credit her apparent claim, on which her son relies, that she was unaware that there was a time limit for filing her son’s Appellant’s Notice.
    5. Although it is appropriate to take into account that a person is acting as a litigant in person and to make allowances, if possible, where necessary (and the history of these proceedings shows that allowances have frequently been made for Mrs Jamous and her son by various judges involved in these proceedings at different stages), a litigant in person is still required to comply with the relevant rules of civil procedure.
    6. In Hysaj at [44], Moore-Bick LJ considered whether the court should adopt a different approach to the question of relief from sanctions in relation to litigants in person:
“… The fact that a party is unrepresented is of no significance at the first stage of the inquiry when the court is assessing the seriousness and significance of the failure to comply with the rules. The more important question is whether it amounts to a good reason for the failure that has occurred. Whether there is a good reason for the failure will depend on the particular circumstances of the case, but I do not think that the court can or should accept that the mere fact of being unrepresented provides a good reason for not adhering to the rules. That was the view expressed by the majority in the Denton case [2014] 1 WLR 3926, para 40 and, with respect, I entirely agree with it. Litigation is inevitably a complex process and it is understandable that those who have no previous experience of it should have difficulty in finding and understanding the rules by which it is governed. The problems facing ordinary litigants are substantial and have been exacerbated by reductions in legal aid. None the less, if proceedings are not to become a free-for-all, the court must insist on litigants of all kinds following the rules. In my view, therefore, being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the rules.”
    1. In short, a litigant in person is required to comply with the rules. Not knowing or being confused about the deadline is not a sufficient excuse for failing to comply. Moreover, Mrs Jamous has, it appears, acquired considerable experience of legal proceedings over the past few years. Also, she and her son continued to fail to comply with the relevant deadline even after the failure was pointed out to Mrs Jamous by Martin Spencer J on 17 January 2019 with a recommendation that the failure be remedied as soon as possible. No Appellant’s Notice was filed until after I had given the direction in my order of 14 February 2019 that the Appellant’s Notice and related applications for an extension of time and permission to appeal be filed by 29 February 2019. Mrs Jamous’s view that it would be a waste of public monies for her son to file an Appellant’s Notice and related applications in relation to his own appeal was not a good or acceptable reason for Mr Jamous not to have complied with the rule.
    2. In summary, Mr Jamous has not advanced any good or acceptable reason why he failed to file his Appellant’s Notice on time.
    3. Finally, it is necessary to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application”, including the need (a) for litigation to be conducted efficiently and at proportionate cost and (b) to enforce compliance with rules, practice directions and orders.
    4. As is clear from Stewart J’s judgment of 5 July 2019, the conduct of these proceedings by Mrs Jamous and her record of compliance with court orders has been poor, including failures to comply with various directions orders for disclosure, the production of witness statements and so on in relation to the claim. There have been numerous misconceived applications by Mrs Jamous to stay or set aside interim orders, and Mrs Jamous has made at least three applications that have been certified by High Court judges as totally without merit, as noted in Stewart J’s judgment of 5 July 2019 at [77]-[78], as I have already discussed at [96]-[97] above. Those failures eventually resulted in Mrs Jamous’s claim being struck out.
    5. In relation to the conduct of this appeal, there have also been serious failures. As I have already concluded, Mr Jamous failed to file his Appellant’s Notice within the time period stipulated in CPR 52.12(2) without any good reason to explain the failure. He has also failed to comply with the direction in Sir Alistair MacDuff’s order of 5 March 2019 to produce an appeal bundle in compliance with CPR PD 52B, para 6.4. He did not do so by the deadline of 28 days following service of Sir Alistair MacDuff’s order on him. When his mother sought an extension of time to file his appeal bundle in the 22 March Application, Soole J in his order of 29 March 2009 dismissed the application and certified it as totally without merit. The failure to file the appeal bundle on time in accordance with the order of Sir Alistair MacDuff was another serious and significant breach of the rules, and therefore a relevant consideration as part of all the circumstances of the case.
    6. Mr Jamous has filed insufficient evidence in support of his applications for an extension of time and for permission to appeal, and he has filed no updated skeleton argument for this hearing. His only submissions, beyond the minimal submissions in the skeleton argument filed by his mother on 29 March 2019 (which I have summarised above), are those in his e-mail of 30 September 2020. Most of that email, however, is concerned with his informal application to adjourn this hearing, accusations against and complaints about Mr Mercouris and his legal representatives and complaints about past hearings and orders.
    7. I have already noted that Mrs Jamous filed a minimal appeal bundle, out of time, on behalf of her son in early April 2019. Although not required to do so, Mr Mercouris’s solicitors have provided a full bundle for the hearing including the pleadings, various application notices by the parties over the past two years (made principally by the appellant), the 30 or so orders that have been made by various Masters and High Court Judges in these proceedings over the past four years (although I notice that the bundle omits some orders that I would consider relevant, for example, the order of Soole J dated 29 March 2019 and the order of Stewart J dated 30 April 2019), witness statements and exhibits, correspondence, other background documents, a chronology, some relevant authorities and the judgment of Stewart J dated 5 July 2019 made in these proceedings, discussed earlier in this judgment. Mr Mercouris also provided a skeleton argument for the hearing.
    8. In his submissions on behalf of Mr Mercouris in opposition to the application of Mr Jamous for an extension of time to file his Appellant’s Notice, Mr Gaurang Naik, of counsel, has made the following points regarding the third stage of the Mitchell/Denton test, “all the circumstances of the case” and the overriding objective:
i) the extant claim (after Master Davison in 2017 struck out the allegations of professional negligence against Mr Mercouris and ruled that parts were time-barred and after the striking out of Mrs Jamous’s claim) is of relatively modest value (see [92] above);
ii) the trial of the claim was originally listed as far back as 9 July 2018 with a time estimate of three days, the trial having to be vacated because of the failure of the claimants to comply with relevant orders, yet there has still been no disclosure and no witness statements and currently no prospect of a trial date;
iii) these proceedings have already, over a period of several years, generated some 30 or so orders and numerous applications and appeals by the claimants;
iv) the claimants have repeatedly failed to comply with rules, practice directions and orders;
v) Mr Mercouris is a private individual without deep pockets;
vi) the claimants’ conduct of the case has been “oppressive and unconscionable”; and
vii) the claimants have abused the generous indulgence that the court has granted them on numerous occasions.
    1. In summary, Mr Naik submitted, having regard to the amount of money involved, the financial position of each party, the need to ensure that the case is dealt with expeditiously and fairly, the need to allot to it an appropriate share of the court’s resources and the need to enforce compliance with rules, practice directions and orders, it is very clear, in light of all the circumstances of the case, that Mr Jamous’s application for an extension of time should be refused.
    2. In relation to Mr Naik’s submissions, I do not think that the claimants have necessarily intended to conduct these proceedings in a manner that was “oppressive and unconscionable” to Mr Mercouris. That has, however, been the effect. It is clear that Mrs Jamous and her son have a sincere and deeply felt grievance against Mr Mercouris. But they have seriously and repeatedly failed to comply with relevant rules, practice directions and orders and the effect of that lack of compliance has meant that these proceedings have not been properly and fairly pursued against Mr Mercouris, with the result that Mr Mercouris has found these proceedings oppressive.
    3. Mr Naik’s other submissions are amply borne out by the history of these proceedings, as reflected in observations by Master Davison, Stewart J and other judges, including me, made on other occasions, some of which I have quoted from or summarised above.
    4. Before concluding the analysis of the third stage of the Mitchell/Denton test, I consider, for the reasons given below, that it is necessary in this case to consider the merits of the appeal and to weigh those in the balance.
The merits of the appeal
    1. As noted in Hysaj at [46]:
“… In most cases the merits of the appeal will have little to do with whether it is appropriate grant an extension of time. Only in those cases where the court can see without much investigation that the grounds of appeal are either very strong or very weak will the merits have a significant part to play when it comes to balancing the various factors that have to be considered at stage three of the process. In most cases the court should decline to embark on an investigation of the merits and firmly discourage argument directed to them. …”
    1. In this case, there is one substantive ground of appeal, namely, that Master Davison was wrong to strike out Mr Jamous’s claim because Master Davison’s order of 30 October 2018 was, in fact, complied with by the filing of a certificate of capacity at the court on 30 November 2018. Prima facie, there appears to be merit in this ground of appeal, for the reasons discussed below. There are, however, some uncertainties that would need to be considered and resolved before the appeal could be finally determined.
    2. I have already referred at [24]-[25] to the email exchange between Mrs Jamous and the court on 24-25 January 2019 regarding whether Master Davison had received her email with attached certificate of capacity on 30 November 2018, and Master Davison’s reply that the court was not an e-filing court and therefore sending the certificate of capacity by email “would not have been sufficient compliance with the order”. There was no mention in that email exchange of Mrs Jamous or her son having also filed a hard copy of the certificate of capacity with the court.
    3. On 8 April 2019 there was an email from Mrs Jamous to Stewart J’s clerk in which Mrs Jamous forwarded to her the exchange of emails on 24-25 January 2019 to which I have just referred and then said the following:
“Could you please scroll down and find the email from [the Queen’s Bench Masters Listing Office] sent to myself on the 25th January with reference to Master Davison’s directions.
I’d really appreciate it if you could pass this onto Mr Justice Stewart so he is fully aware of the situation regarding Master Davison. My point being: (1) Master Davison did receive a copy of the Certificate on the 30th November 2018 as he was copied into the [email] which I sent to the court … . (2) I believe the court was an e-filing court at the time the Master made his directions on the 25th January 2019.”
    1. There is no reference in this email to a hard copy also having been filed with the court, as one would have expected there to be if it were the case that a hard copy of the certificate of capacity had also been filed at court on 30 November 2018. Mrs Jamous was clearly aware that Master Davison was taking the view that if the certificate of capacity was filed only by email, then had not been properly filed. Accordingly, the natural response would have been to say that a hard copy was also filed. But Mrs Jamous’s only argument in her email of 8 April 2019 is that she believed the court to be an e-filing court “at the time the Master made his directions on the 25th January 2019”.
    2. In any event, it did not matter whether the court was an e-filing court on 25 January 2019, but whether it was so on 30 November 2018, which was the deadline by which the certificate of capacity had to be filed under the “unless” order made by Master Davison on 30 October 2018. The Master was clearly correct on 25 January 2019 when he said that filing the certificate of capacity by email on 30 November 2018 did not comply with his order of 30 October 2018, as the court was not an e-filing court at that time.
    3. The only evidence that Mr Jamous has filed to support his case on the merits of his appeal against the 18 December Order is his one-page “Ground for Appeal” in his Appellant’s Notice, which reads in its entirety as follows:
“1) The 2nd Claimant filed a copy of the certificate as ordered by Master Davison on the 30th October 2018. The certificate was filed by email and also a hard copy was filed which was stamped as received on the 30th November 2018. It was not ordered that the certificate should be served on the Defendant.
2) The [Defendant’s] solicitor claims by email to the 2nd [Claimant] the following: ‘I note that Master Davison considered the certificate to be in some way(s) defective.’ This email was sent on the 1st February 2019. However on 25th January 2019 at 07:44 [the Queen’s Bench Masters’ Listing Office] emailed the 2nd Claimant on behalf of Master Davison stating the Master made the following direction: ‘I did not receive her email. The requirement was to file the certificate. We are not an e-filing court and we do not accept documents filed by email.’
3) There is supporting evidence that this certificate was filed and Master Davison does not make any reference to a defect. He actually denies he has received the certificate. I/we believe to strike out the 1st Claimant in his absence was wrong. This is the grounds for appeal.”
    1. Although Mrs Jamous makes no reference in her email messages of 24 January 2019 and 8 April 2019 to which I have just referred above to having also filed a hard copy of the certificate of capacity, that is now clearly Mr Jamous’s case. Mr Jamous asserts that there is “supporting evidence” that the certificate was filed at court, but he has not provided any for this hearing. Attached to the skeleton argument The correspondence to which I have just referred also raises a question mark over whether a hard copy was filed.
    2. I note that at paragraph (3) of the Ground for Appeal, Mr Jamous asserts that Master Davison does not make any reference to a defect in the certificate of capacity but simply denies having received it. While that is an accurate summary of Master Davison’s response to her email of 24 January 2019, as sent to Mrs Jamous by the Queen’s Bench Masters’ Listing Office, I note that in the 18 December Order against which Mr Jamous is appealing, Master Davison noted in the second recital to the order that:
“… the claimants have not complied with paragraph 3 of the Order dated 30 October 2018, i.e. have not filed at court a certificate in the proper form as to the first claimant’s capacity to conduct these proceedings” (emphasis added)
    1. On its face, in other words, Master Davison’s order does not make it clear whether no certificate at all was “filed at court” or whether a certificate was “filed at court” but the document filed was not “in the proper form”. Mr Mercouris appears to have interpreted the 18 December Order in the latter way, which may explain the reference by his solicitors to the certificate being “in some way(s) defective” in their email of 1 February 2019 (which is not in the bundle provided to the court by Mr Mercouris for this hearing), referred to at paragraph 2 of the Ground for Appeal.
    2. So, if the appeal were to proceed, there would need to be proper evidence, beyond Mr Jamous’s mere assertion in his Ground for Appeal, that the certificate was filed at court (rather than simply sent to the court by email) within the deadline stipulated by Master Davison, and, if that were established, there would need to be proper evidence as to the contents of the certificate to verify whether it was “in the proper form”, as required by Master Davison’s order of 8 August 2018. As I have already noted, Mrs Jamous provided to the court, with a copy to Mr Mercouris in redacted form (and later in unredacted form) in early April 2019 a copy of what she asserted was the full certificate of capacity filed by her on 30 November 2018. That would need to be assessed at a hearing of the substantive appeal.
    3. Finally, I note that I have found on the court file that on 15 April 2019 the Queen’s Bench Judges Listing Office sent the following message on behalf of Stewart J to Mrs Jamous and to Howard Kennedy:
“Mrs Jamous e mailed the clerk to Mr Justice Stewart (in his capacity as Judge in Charge of the Queen’s Bench Civil List) last Friday (2nd April) and Monday 5 April regarding the pending appeal.
The Judge has made investigations of the file. The attached document was filed at The Royal Courts of Justice Action Department on 30 November 2018, as the stamp demonstrates. [A copy of page 1, not redacted is also on the court file] The Senior Master has checked that the form is logged on the court system as having been filed on 30 November. This matter was of course mentioned before Mr Justice Murray in the related appeal heard on 14 February 2019, [see in particular para 66 transcript of which is on the Lawtel website]. The Judge has out a copy of this transcript on the Court file
This message is so that both parties are fully in the picture and in case it might enable resolution of the appeal by a draft consent order.
The Respondents are entitled, if they wish[,] to a copy of the emails sent to Mr Justice Stewart by Mrs Jamous and the brief written response made by the Judge’s clerk to her sending the Judge’s reply.
Mr Justice Stewart will not hear the appeal if it is a contested matter.”
    1. This does appear to support Mr Jamous’s case that a hard copy of the certificate of capacity was filed with the court on 30 November 2018.
    2. Mr Mercouris was not, however, bound to accept the suggestion by Stewart J that the appeal be resolved by consent order. He was entitled to challenge Mr Jamous’s application for an extension of time to file his Appellant’s Notice and for permission to appeal.
    3. Furthermore, questions remain as to whether the certificate of capacity as purportedly filed by Mrs Jamous on 30 November 2018 properly complied with Master Davison’s order of 30 October 2018 and why Mrs Jamous made no reference to having filed a hard copy in her email messages of 24 January and 8 April 2019.
    4. A question also arises as to why, immediately after receiving the 18 December Order, Mrs Jamous, on behalf of her son, did not take the simple and obvious step of applying to Master Davison, supported by appropriate evidence, to have the order set aside on the basis that the order of 30 October 2018 had been complied with. Mrs Jamous had already made a number of applications to set aside orders in these proceedings and was familiar with the procedure.
    5. When considering the third stage of the Mitchell/Denton test, I have weighed carefully in the balance, as part of all of the relevant circumstances of the case, that, particularly in light of Stewart J’s investigation of the court file, referred to at [135] above, there appears to be merit in Mr Jamous’s ground of appeal. Given the lack of supporting evidence, however, from Mr Jamous that would be needed to resolve the questions that I have highlighted above, this factor does not persuade me that the extension of time to appeal should be granted notwithstanding the other factors discussed above that weigh heavily in favour of refusing the application.
Conclusion
  1. In summary, Mr Jamous’s failure to file his Appellant’s Notice within the time limit stipulated by the rules was a serious and significant breach that continued even after an explicit warning by Martin Spencer J that the appeal was out of time and, if it was going to be pursued, should be filed “as soon as possible”. There was no good reason for that serious and significant breach. Having regard to all the circumstances of the case, there is no justification for relief from sanctions. Accordingly, in my judgment, applying the principles set out in MitchellDenton and Hysaj, Mr Jamous’s application for an extension of time to file his Appellant’s Notice must be refused.