In  Microsoft Ireland Operations Ltd & Ors v JJH Enterprises Ltd (Re Electronic Filing of Appellant’s Notice) [2022] EWCA Civ 1509 the Court of Appeal upheld a finding that an appellant’s notice filed electronically after 4.30pm on the last date for appealing was served in time.

“There is no reason why electronic filing should be treated in the same way as filing by e-mail or fax. There is indeed some reason why it should not be: the Scheme is intended not simply to supplement traditional methods of filing but, as paragraph 2.1 declares, to replace them (subject to some limited exceptions) with a wholly new method.”


The defendant, Microsoft,  wished to appeal an order.   The court made an order in relation to time for appealing and the last day for appealing was 6th June.   At 4.52 on the 6th June Notice of Appeal was lodged an Appellant’s Notice at Court electronically, in accordance with PD51O.

The claimant asserted that the notice had been lodged out of time. Bing lodged after 4.30. The Master made an order declaring the Notice had been filed on time, PD51O meant that documents could be filed any time up to midnight.

The issue came before the Court of Appeal. Having read the submissions the Court indicated that they would resolve the issue on the basis of written submissions. However judgment was given in the context of an oral hearing to allow reporting.


The Court of Appeal upheld the Master’s decision. The Notice of Appeal was made in time.

    1. The Electronic Working Pilot Scheme introduced by PD 51O operates from 16 November 2015 to 6 April 2023: see paragraph 1.1 (1). The scheme became operative in different court offices on different dates: paragraph 2.23 provides that as regards the Civil Division of the Court of Appeal electronic filing was mandatory (for parties who are legally represented) from 14 February 2022. Section 2 is headed “Usage and Operation of Electronic Working”. Paragraph 2.1 begins:

“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 and on weekends and bank holidays, except … .”

Some exceptions follow, but they are immaterial for our purposes. The Practice Direction contains no provision limiting the time of day during which a document can be filed.
    1. I turn to the question which we have to decide. I would not in fact start with PD 51O itself but with the Rules and Practice Directions as they stood before its introduction. As we have seen, and as Van Aken confirms, the provisions governing the traditional methods of filing contained no requirement for filing in office hours: the only limitation (at least in the RCJ) was the practical one of effecting delivery. When it was thought desirable that there should be such a limitation in the case of filing by fax and e-mail, which were not subject to the same practical limitation, an explicit requirement had to be introduced. Against that background, when PD 51O introduced electronic filing any limitations on the permissible times of filing would require to be the subject of explicit provision; but there is none. I do not, therefore, believe that any Rule or Practice Direction requires filing in office hours in the case of electronic filing. I should say, for the avoidance of doubt, that such a requirement could be introduced by a specific order in the particular case: normally there would be no purpose in any such requirement, but there might be a reason for it in particular circumstances.
    1. That is sufficient to establish that documents can be filed electronically out of office hours. But I think the same conclusion can be reached by reference to paragraph 2.1 of PD 51O: see para. 12 above. I acknowledge that that provision reads more like a general statement of the 24-hour availability of electronic filing than a specific rule, and it is not directed explicitly to the question of the time of day at which a time limit for filing expires. But the fact remains that it contains an unqualified statement that under the Scheme parties can “issue proceedings … 24 hours a day …, including out of normal Court office operating hours”. In my view, in the absence of any provision to the contrary and subject to any different order in the particular case that would reasonably be understood by litigants as a statement that such filing would be effective for all purposes, including where time expired on the day in question.
    1. That conclusion means that the makers of PD 51O adopted a different approach from the makers of PD 5A and 5B. But that is not particularly surprising. There is no reason why electronic filing should be treated in the same way as filing by e-mail or fax. There is indeed some reason why it should not be: the Scheme is intended not simply to supplement traditional methods of filing but, as paragraph 2.1 declares, to replace them (subject to some limited exceptions) with a wholly new method.
    1. The principal counter-argument advanced by CF in their well-argued submissions for VL relies on paragraph D18.2 of the Commercial Court Guide (“the CCG”), which reads:

“If the Court orders that an act be done by a certain date without specifying a time for compliance, the latest time for compliance is 4.30 p.m. on the day in question.”

CF argue that since para. 3 of Picken J’s order of 14 April 2022 did not specify a time by which the Appellant’s Notice should be filed, paragraph D18.2 took effect to make 4.30 p.m. the latest time for doing so.
    1. The Master held that a provision of the CCG could have no application in the Court of Appeal, and further that paragraph D18.2 is inconsistent with paragraph 2.1 of PD 51O. I am not, with respect, sure that either point is correct. As CF point out, the effect of CPR 52.12 (2) (a) is that the time for filing an Appellant’s Notice may depend on a direction made by the lower court, in which case there is nothing inherently objectionable about construing such an order in accordance with the practice prevailing in the court in question. And, as already noted, I do not think that paragraph 2.1 can be read as precluding the making of an order in a particular case requiring filing by a specified time short of midnight – which, on VL’s case, would be what paragraph D18.2 does in all Commercial Court cases. But I believe that there is a more straightforward answer to VL’s submission. Para. 3 of Picken J’s order does not, in the language of paragraph D18.2, “order that an act be done”: it merely extends time for Microsoft to file an Appellant’s Notice if it chooses.
    1. I should deal briefly with three other points made on behalf of VL.
    1. First, our attention was drawn to CPR 2.9 (1), which requires that where a court imposes a time limit for doing any act the last date for compliance should, whenever practicable, include the time of day by which the act must be done. But the short answer is that even if that rule applies to an extension such as was granted in this case Picken J’s order included no such time.
    1. Second, reference is made to the obligation imposed on the court office by paragraph 2 (1) of PD 5A, read with para. 5 (4) of PD 51O, to record the date and time of filing. But, as was held in Van Aken, the existence of that obligation does not entail that documents must be filed within office hours, as long as there are means by which the date and time can be ascertained. That is plainly the case with electronic filing.
    1. Thirdly, it was pointed out that paragraph 1.2 (1) of PD 51O makes clear that:

“Electronic Working works within and is subject to all statutory provisions and rules together with all procedural rules and practice directions applicable to the proceedings concerned, subject to any exclusion or revision within this Practice Direction”.

But, for the reasons which I have given, an entitlement to file outside office hours is not inconsistent with any rule or practice direction applying to the Civil Appeals Office.
  1. I accordingly see no reason to alter the Master’s decision that the Appellants’ Notice was filed in time.