NOTICE OF APPEAL LODGED AFTER 4.30 LODGED IN TIME: THE COMMERCIAL COURT GUIDE CANNOT OVERRIDE THE PRACTICE DIRECTION

July 1, 2022 · by · in Appeals

I am grateful to Aidan Robertson QC  for sending me a copy of the decision of Civil Appeals Officer Master Bancroft-Rimmer in the case of Microsoft Corporation -v- JJH Enterprises.  It relates to the interplay of the Commercial Court Guide and the Practice Direction on Electronic Filing.  A copy of the decision is available here CA-2022-001102 A SEALED ORDER (1)

 

 

” the Commercial Court Guide cannot overrule the provisions of PD
51O which provide that filing may take place outside of normal office hours.
Therefore an Appellant’s Notice filed on the last day for filing is in time even if
filed after 4.30pm. “

 

THE CASE

The appellant had filed a Notice of Appeal by the CE file on the last possible day for filing. It had been filed after 4.30 pm.  The respondent argued that the appeal had been filed out of time.  The Master held that it had not.  The Practice Direction allowed documents to be filed outside normal court hours and the appeal had been filed in time.

THE DECISION

It was found that the appeal was lodged in time.  The Electronic Working Scheme meant that documents could properly be lodged outside working hours and an appeal lodged after 4.30 using the Scheme was lodged in time.

 

“The Appellant’s Notice was filed at 16.52 on 6 June via the Electronic Working
Scheme (known as CE File) as required by Practice Direction 51O. In
accordance with paragraph 2.3 of Practice Direction 51O the appropriate fee was
also paid on 6 June.

The time for filing the Appellant’s Notice was extended by Mr Justice Picken
pursuant to CPR 52.12(2)(a). Paragraph 3 of the order dated 14 April extended
the time for filing the Appellant’s Notice until 21 days after the determination of
any application for permission made to the High Court. There is no dispute that
the last day for filing the Appellant’s Notice pursuant to the order of 14 April was
6 June.

The Respondent has raised an issue about whether the Appellant’s Notice was
filed in time as it was filed after 16.30. Their position is that paragraph D18.2 of
the Commercial Court Guide applies to the order of 14 April and that therefore
the deadline for filing in the Court of Appeal was 16.30. Paragraph D18.2 states:
“If the Court orders that an Act be done by a certain date without specifying a
time for compliance, the latest time for compliance with 4.30pm on the day in
question.”
The Respondent further submits that the application of D18.2 is not in tension
with the Electronic Working Scheme, which does not make any relevant
provision as to the deadline. I find that that submission is incorrect. Paragraph
5.4(1) of PD 51O provides:
“(1) Where payment of a court fee is required to accompany the filing of a
document, the date and time of filing on Electronic Working will be deemed to be
the date and time at which payment of the Court fee is made using Electronic
Working.”
Paragraph 2.1 of PD 51O provides:
* This order was drawn by Ismothara Priya (Associate) to whom all enquiries regarding this order should be made. When
communicating with the Court please address correspondence to The Associate, Civil Appeals Office, Room E307, Royal Courts of
Justice, Strand, London WC2A 2LL (DX 44456 Strand) and quote the Court of Appeal reference number. The Associate’s telephone
number is 0207 947 7183 and 0207 947 7856.
“Electronic Working enables parties to issue proceedings and file documents
online 24 hours a day every day all year round, including during out of normal
Court office opening hours”

Practice Direction 51O therefore provides that the date and time of filing on CE
File will be the date and time of payment of the Court Fee and that this time may
be outside of normal Court office opening hours.

Paragraph D18.2 of the Commercial Court Guide is therefore in tension with the
Electronic Working Scheme. I consider that the Guide does not apply to the
Court of Appeal. The Guide describes itself as “a point of reference for those
litigating in the Commercial Court” and paragraph D18.2 falls under the section
headed “Case Management in the Commercial Court”. The Commercial Court
Guide is limited to proceedings in the Commercial Court and therefore paragraph
D18.2 does not apply to filing an application for permission to appeal to the
Court of Appeal.

In any event the Commercial Court Guide cannot overrule the provisions of PD
51O which provide that filing may take place outside of normal office hours.
Therefore an Appellant’s Notice filed on the last day for filing is in time even if
filed after 4.30pm. On that basis it is not necessary to determine the applicant’s
alternative application for an extension of time.”