SEEKING PERMISSION TO APPEAL: THE COVID PROTOCOL MAKES NO DIFFERENCE TO THE TIME LIMITS: A POINT TO REMEMBER

In  Claydon Yield-O-Meter Ltd v Mzuri Ltd & Ors [2021] EWHC 1322 (IPEC)  HHJ Hacon rejected an argument that the Covid Protocol had any effect on the provisions for applying for permission to appeal.  The proposed appellants should have applied at the time that the judgment was handed down.  Any application for permission now had to be made to the Court of Appeal.  The case underlines previous authorities on the point that there is a very limited window of opportunity to make an application for permission to appeal to the first instance judge.

THE CASE

The judge sent out a draft judgment on the 19th April 2021 and the date set for judgment to be handed down was 22nd April 2021. The parties were excused attendance at court on the 21st and the judgment was handed down remotely pursuant to the Covid-19 Protocol.

On the 13th May 2021 the claimant’s solicitors sent a draft order to the defendant, this included a reference to the claimant seeking permission to appeal.

The defendants replied stating that the court no longer had jurisdiction to grant permission to appeal.

“since no application was made to this court at the hearing at which the decision to be appealed was made, within the meaning of CPR 52.3(2)(a) and there was no application to adjourn the date of that decision. Further, the 21 day time limit for filing an appellant’s notice, imposed by CPR 52.12(2)(b), had expired on 13 May 2021; an application to vary that time limit could only be made to the Court of Appeal, pursuant to CPR 52.15(1).”

The claimant wrote to the court seeking permission. The defendant put in written submissions in reply.

THE RULES

The rule

    1. CPR 52.3(2)(a) provides:
(2) An application for permission to appeal may be made –

(a) to the lower court at the hearing at which the decision to be appealed was made;

    1. CPR 52.15(1) provides:
(1) An application to vary the time limit for filing an appeal notice must be made to the appeal court.

THE COVID PROTOCOL MAKES NO DIFFERENCE TO THE TIME LIMITS

The judge rejected an argument that the Covid Protocol made a difference to the time limits.

 

    1. Mr St Quintin advanced two arguments in his email of 14 May 2021 relating to the Covid Protocol. The first was that a remote handing down of a judgment under the Covid Protocol does not amount to a hearing at which the decision to be appealed was made within the meaning of CPR 52.3(2)(a). The second was that the remote handing down of a judgment under the Covid Protocol either automatically adjourns the CPR 52.3(2)(a) hearing or alternatively in the present case that hearing must be taken to have been adjourned because the court intended a further hearing if the parties were to be unable to agree an order on consequential matters.

 

  1. I do not accept either of these arguments. I can see no rational basis for treating the handing down of a judgment under the Covid-19 Protocol as being different from the handing down of a judgment in open court in relation to permission to appeal. I accept that there was no hearing in the usual sense of the term on 22 April 2021. But even where a judgment is handed down in open court, it is not unusual for the parties to have been informed by the court that they need not attend and that there will be a subsequent hearing of submissions on consequential matters if not agreed, or alternatively that such matters will be decided by the court in writing. In those circumstances there is no hearing in the usual sense when the judgment is handed down. The question is whether there is nonetheless a hearing within the meaning of CPR 52.3(2)(a). If so, in my view there is also a hearing in that sense when a judgment is handed down under the terms of the Covid Protocol.

THE CASE LAW IN RELATION TO PERMISSION TO APPEAL BEING GRANTED BY THE FIRST INSTANCE JUDGE

The judge reviewed the case law relating to permission to appeal and rejected the defendants’ arguments that the normal principles did not apply. (The emphasis here are part of the original judgment).

    1. However, the more substantive answer to Mr St Quintin’s arguments can be drawn from McDonald v Rose [2019] EWCA Civ 4. In his judgment (giving the judgment of the Court) Underhill LJ considered several authorities including Sayers v Clarke Walker [2002] EWCA Civ 645Owusu v Jackson [2002] EWCA Civ 877Jackson v Marina Homes Ltd [2007] EWCA Civ 1404Lisle-Mainwaring v Associated Newspapers [2018] EWCA Civ 1470 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633. He then provided a summary headed “The Correct Procedure” at paragraph 21 (the emphases in bold are mine; that in italics (as well as bold) is original):
“[21] It is the experience of the court that the effect of the rules, as expounded in the authorities referred to above, is often not properly understood by would-be appellants. We think there is value in our summarising in this judgment the effect of those authorities and the procedure that ought to be followed in consequence by parties wishing to seek permission to appeal from the lower court (which is good practice though not mandatory). We would set the position out as follows:
(1) The date of the decision for the purposes of CPR r 52.12 is the date of the hearing at which the decision is given, which may be ex tempore or by the formal hand down of a reserved judgment: see Sayers v Clarke and Owusu v Jackson. We call this the decision hearing.
(2) A party who wishes to apply to the lower court for permission to appeal should normally do so at the decision hearing itself. In the case of a formal hand down where counsel have been excused from attendance that can be done by applying in writing prior to the hearing. The judge will usually be able to give his or her decision at the hearing, but there may be occasions where further submissions and/or time for reflection are required, in which case the permission decision may post-date the decision hearing.
(3) If a party is not ready to make an application at the decision hearing it is necessary to ask for the hearing to be formally adjourned in order to give them more time to do so: see Jackson v Marina Homes. The judge, if he or she agrees to the adjournment, will no doubt set a timetable for written submissions and will normally decide the question on the papers without the need for a further hearing. As long as the decision hearing has been formally adjourned, any such application can be treated as having been made ‘at’ it for the purpose of CPR r 52.3(2)(a). We wish to say, however, that we do not believe that such adjournments should in the generality of cases be necessary. Where a reserved judgment has been pre-circulated in draft in sufficient time parties should normally be in a position to decide prior to the hand down hearing whether they wish to seek permission to appeal, and to formulate grounds and such supporting submissions as may be necessary; and that will often be so even where there has been an ex tempore judgment. Putting off the application will increase delay and create a risk of procedural complications. But we accept that it will nevertheless sometimes be justified.
(4) If no permission application is made at the original decision hearing, and there has been no adjournment, the lower court is no longer seized of the matter and cannot consider any retrospective application for permission to appeal: see Lisle-Mainwaring.
(5) Whenever a party seeks an adjournment of the decision hearing as per (3) above they should also seek an extension of time for filing the appellant’s notice, otherwise they risk running out of time before the permission decision is made. The 21 days continue to run from the decision date, and an adjournment of the decision hearing does not automatically extend time: see Hysaj. It is worth noting that an application by a party for more time to make a permission application is not the only situation where an extension of time for filing the appellant’s notice may be required. It will be required in any situation where a permission decision is not made at the decision hearing. In particular, it may be that the judge wants more time to consider (see para (2) above): unless it is clear that he or she will give their decision comfortably within the 21 days an extension will be required so as to ensure that time does not expire before they have done so. In such a case it is important that the judge, as well as the parties, is alert to the problem.”
    1. Thus, the hearing at which the decision to be appealed was made, within the meaning of CPR 52.3(2)(a), is the hearing at which the judgment is handed down by the lower court. Where the handing down is a formality and the parties are not required to attend, it still constitutes a hearing, still the hearing referred to in CPR 52.3(2)(a). That hearing can be adjourned for the purpose of hearing applications for permission to appeal, but it must be done formally by the court following an application by at least one of the parties. Where that happens, an application for permission to appeal will be treated as being made at the hearing referred to in CPR 52.3(2)(a). If there has been no such adjournment, the lower court has no jurisdiction to consider an application for permission to appeal at a subsequent hearing.
    1. Further, even if an adjournment has been granted, unless the lower court also grants an extension of time to file an appellant’s notice, the time for doing so expires 21 days after the date on which the judgment was handed down.

THE RESULT

The court did not now have jurisdiction to grant permission to appeal. Further the time for appealing had passed and they had to seek permission to extend time from the Court of Appeal.

Conclusion
  1. It follows that in the present case, first, I have no jurisdiction to consider the Defendants’ application for leave to appeal. Secondly, even if I had such jurisdiction, the time for filing an appellant’s notice has now expired and an application to extend time retrospectively may be made only to the Court of Appeal.