APPEAL WAS OUT OF TIME DUE TO FAILURE TO USE EFILING: A POINT TO WATCH

The judgment of Eason Rajah QC (sitting as a Judge of the Chancery Division)in  Walker v The Official Receiver [2021] EWHC 2868 (Ch) highlights a problem with appeals in the Chancery Division.  The appellant had problems because an appeal was to the wrong court and did not use efiling.  Fortunately an extension of time was granted in this case.  Other would be appellants may not be so fortunate.

THE CASE

The appellant sought to appeal a decision of a District Judge. The papers were sent to the Court of Appeal by courier within the 21 day deadline for appealing.  This was the wrong court.  The papers were sent to the correct court which stated that they should have been e-filed.  This put the appellant out of time.

THE JUDGMENT ON THIS ISSUE

The judge noted that the appeal was lodged out of time, permission to extend time was required.

1. 1. The District Judge’s order under appeal was made on 15 January 2021. Pursuant to CPR 52.12, Mr Walker had 21 days from that date to file an appeal notice. His Appeal Notice was in fact filed on 15 February 2021. Included in the Appeal Notice is an application for permission to bring the appeal out of time. The OR adopts a neutral position on the application for permission to bring the appeal out of time.

1. 1. An appeal court can vary the time limit for filing an appeal notice even if the application is made after the time for compliance has expired (CPR 52.15 and 3.1(2)(a)). Such applications are equated with applications for relief from sanctions and the Denton principles apply. In summary a judge should address the application in three stages. The first stage is to assess the seriousness of the procedural breach. The second is to consider the reason for the default. The final stage is to determine, having regard to all the circumstances of the case, how to deal justly with the application.

1. 1. A 10 day delay in filing an appeal notice is not trivial, but it has not delayed the hearing of this appeal in any material way or increased costs or otherwise caused any hardship or injustice to the OR. At the time the Appeal Notice was filed on 15 February 2021 the parties had not yet even received the transcript of the judgment.

1. 1. The reason for the delay is set out in the Appeal Notice. Mr Walker’s solicitors attempted to file the Appeal Notice, Grounds of Appeal by hand delivery by courier on 2 February 2021 – within the 21 day appeal period. On 3 February 2021 Mr Walker’s solicitors were informed by the Civil Appeal’s Officer that the documents had made their way to the Court of Appeal but would be passed to High court Appeals. On 15 February 2021 the Notice was returned unissued on the basis that it ought to have been filed using e-filing. The Appeal Notice appears to have then been redrafted to include an application for permission to bring the appeal out of time and efiled that day. Plainly Mr Walker’s solicitors must take responsibility for failing to realise that the Appeal Notice needed to be efiled, but it is clear that they attempted to file the Appeal Notice within time, and it is the mechanical processes of doing so which have caused the Appeal Notice to be filed late.

1. In the circumstances of this case and having regard to the significance of the breach and the reasons for it, it would be a wholly disproportionate reaction to the breach to refuse to extend the time for bringing the Appeal. I will accordingly vary the time for filing an Appeal Notice to 15 February 2021.