Leigh Callaway, Senior Associate, Fladgate LLP (firstname.lastname@example.org)
Joshua Bennett, Trainee Solicitor, Fladgate LLP (email@example.com)
When does time for making an application for permission to appeal begin? In circumstances where the time period for making such an application is a relatively limited 21 days, the importance of understanding the answer to this question cannot be understated. In McDonald v Rose, the Court of Appeal recently provided guidance on the procedure to be followed by parties wishing to seek permission to appeal.
The applicant, Gary McDonald, applied to the Court for an extension of time to seek permission to appeal a decision made in a succession claim.
The judge handed down his written judgement on 9 March 2018, but in accordance with usual practice, circulated a draft judgment to the parties on 7 March 2018. The parties were notified that the judgment would be formally handed on 9 March 2018, but that their attendance was not required.
On 8 March, McDonald’s solicitors wrote to the court saying that he was considering seeking permission to appeal and asking the judge to adjourn the 9 March hearing to enable him to do so. However, they did not seek any extension of the 21-day time limit provided for in CPR r.52.12 for filing an appellant’s notice with the Court of Appeal.
Judgment was handed down on 9 March. The judge, however, adjourned the hearing of the application for permission to appeal by 14 days, ordering that the parties provide written submissions. Those submissions were provided on 23 March. The judge refused permission to appeal on 18 April.
The applicant filed an appellant’s notice on 9 May. That was the last possible day if the 21 day period began on 18 April but was out of time if the relevant period began on 9 March. The applicant subsequently applied to retrospectively extend the 21 day time limit.
Permission to appeal was refused on the basis that the appellant’s notice was filed out of time.
The date of the decision for the purposes of r.52.12 was the date of the hearing at which the decision was given, which could be ex tempore or at a later hearing at which judgment was handed-down, in this case 9 March 2018. The Court also gave the following additional guidance on the rules of seeking permission to appeal:
As for the application for a retrospective extension, this was to be regarded as an application for relief from sanctions. Applying the three stage Denton test, that application was refused, albeit it was accepted as borderline.
  EWCA Civ 4
 Pursuant to CPR 52.12(2), the appeal notice must be filed within 21 days after the date of the decision of the lower court which the appellant wishes to appeal, or such longer or shorter period as may be directed by the lower court.
 Being: (1) the seriousness and the significance of the failure to comply with the rules; (2) why the default occurred; and (3) an evaluation of all the circumstances of the case.
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