Knowing when to appeal

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[1], the Court of Appeal recently provided guidance on the procedure to be followed by parties wishing to seek permission to appeal.

Background

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[2] 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.

Decision

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:

1. A party wishing 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 had been excused attendance that can be done by applying in writing before the hearing.
2. 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. Whenever a party seeks an adjournment of the decision hearing 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.
3. 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

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[3], that application was refused, albeit it was accepted as borderline.

[1] [2019] EWCA Civ 4

[2] 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.

[3] 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.