APPLICATION FOR PERMISSION TO APPEAL WAS MADE OUT OF TIME: THE TRIAL JUDGE HAD NO JURISDICTION TO HEAR THE APPLICATION

There is another aspect of the judgment in Omya UK Ltd v Andrews Excavations Ltd & Anor [2022] EWHC 1882 (TCC) that is worth considering. The unsuccessful defendants applied for permission to appeal to the trial judge at the hearing where issues relating to costs and interest were considered.  However the judgment itself was handed down many months before.  The defendants were, therefore, considerably out of time and the trial judge had no jurisdiction to hear the application for permission.

THE CASE

The judge handed down a judgment on a remote basis in December 2021. The matter was listed for a hearing on the 19th July 2022 to consider issues relating to costs and interest. The defendants applied, at that hearing, for permission to appeal.  The judge found that he had no jurisdiction to hear that application.

THE JUDGMENT ON THIS ISSUE

Do I have jurisdiction to grant permission to appeal?
    1. The Defendants seek permission to appeal.
    1. The Claimant submits that the Defendants are out of time to make this application to me.
    1. There is authority binding upon me, namely McDonald v Rose [2019] EWCA Civ 4. In that case Underhill L.J. said at [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 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: 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 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: 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: 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 (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.
(6) As to the length of any extension, Brooke LJ says in Jackson v Marina Homes (para. 8) that it should normally be until 21 days after the permission decision. However, the judge should consider whether a period of that length is really necessary in the particular case: it may be reasonable to expect the party to be able to file their notice more promptly once they know whether they have permission.”
    1. In this case, as I have indicated above, the handing down took place on a remote basis on 17 December 2021. In the event, the application for permission to appeal was not made to me until 1 July 2022.
  1. As I read McDonald v Rose I have no jurisdiction to grant permission to appeal.