COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
LORD JUSTICE KAY
SIR CHRISTOPHER STAUGHTON
| MICHAEL PATRICK SAYERS||Claimant/|
|- and -|
|CLARKE WALKER (A firm)||Defendants/|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Giles Goodfellow (instructed by Thomas Eggar Church Adams) for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Brooke :
“The appellant must file the appellant’s notice at the appeal court within (b) …14 days after the date of the decision of the lower court that the appellant wishes to appeal.” (Emphasis added)
This marks a change of practice from RSC O59 r 4(1), which provided:
“Except as otherwise provided by this Order, every notice of appeal must be served under rule 3(5) not later than 4 weeks after the date on which the judgment or order of the court below was sealed or otherwise perfected.” (Emphasis added)
“There are certain inaccuracies in [the solicitors’] letter of 3rd December. Let me deal with them first.
1. The time limit for filing an appellant’s notice is clearly set out in CPR 52.4(2)(a) and (b) as being 14 days after the date of the decision of the lower court that the appellant wishes to appeal, in the absence of any other period being directed by the Court. Therefore, it is entirely right that time is calculated from the date of the decision as shown in the order, which is 17th October 2001. If the parties felt there would be difficulties in complying with the deadline for filing an Appellant’s Notice the appropriate course would have been to ask the Judge to extend time pursuant to CPR 52.4(2)(a).
2. The Court will often accept an Appellant’s Notice when an order has not yet been drawn on the basis of an undertaking supplied by the Solicitors lodging it …
3. I cannot speak for what may or may not have been said in conversations between the solicitors and members of staff in the Registry. It is however, quite wrong for solicitors to attempt to rely on such conversations for the purpose of interpretation of legal practice which they, as lawyers, should be expected to know. They should also be expected to realise that CPR 52 made radical changes from the old RSC Order 59, one of which was that time now runs from the date of the decision NOT the date of the seal on the order (paragraphs 6, 7, 8, 9, 10, 11).
For the reasons I have given this appellant’s notice has been filed out of time.”
“It is entirely in the discretion of the Court to grant or refuse an extension of time. The factors which are normally taken into account in deciding whether to grant an extension of time for serving a notice of appeal are : (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if time for appealing is extended and (4) the degree of prejudice to the potential respondent if the application is granted (see CM Stillevoldt BV v El Carriers Inc  1 WLR 297 …) …
Where the delay in serving notice of appeal is short and there is an acceptable excuse for it, an extension of time will not be refused on the basis of the merits of the intended appeal, unless the appeal is hopeless: Palata Investments Ltd v Burt & Sinfield Ltd  1 WLR 942. In Norwich & Peterborough Building Society v Stead  1 WLR 449 and Mallory v Butler  1 WLR 458 the Court of Appeal held that:
(4) The settled practice of the Court is to assess and take into account the merits of the proposed appeal in deciding whether or not to grant an extension of time for appealing (subject to the qualification in the Palata case (above)).”
“For the system to work effectively, it is important that all rules and procedures are complied with strictly. In some Federal Circuits in the United States very little leeway is given if parties do not comply with the rules. Once this is clear, parties seem to find it easier to meet deadliness and other requirements. It is time this approach was applied in the [Court of Appeal].”
“We do not believe that whether an appeal has a realistic chance of succeeding should be relevant. There should be realistic time limits. There should be a strong presumption that time limits should not be extended save in exceptional circumstances.
A similar view should be taken about all the rules of the Court of Appeal. If they are not complied with, the applicant or appellant should be at risk of having his or her case dismissed or at least being penalised in costs.”
“(1) An application to vary the time limit for filing an appeal notice must be made to the appeal court.
(2) The parties may not agree to extend any date or time limit set by –
(a) these rules; or
(b) the relevant practice direction;
(c) an order of the appeal court or a lower court.
(Rule 3.1(2)(a) provides that the court may extend or shorten the time for compliance with any rule, practice direction or court order (even if an application for an extension is made after the time for compliance has expired)).”
CPR 52PD para 5.2 provides:
“If an appellant requires an extension of time for filing his notice the application must be made in the appellant’s notice. The notice should state the reason for the delay and the steps taken prior to the application being made.”
“Inherent in such an approach, as it seems to me, is the danger that a body of satellite authority may be built up … leading in effect to the rewriting of the relevant rule through the medium of judicial decision. This would seem to me to be just the kind of undesirable consequence which the CPR were designed to avoid.”
(a) the interests of the administration of justice;
(b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional;
(d) whether there is a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions and court orders;
(f) whether the failure to comply was caused by the party or his legal representative;
(h) the effect which the failure to comply had on each party; and
(i) the effect which the granting of relief would have on each party.
In the case of a procedural appeal the court would also have to consider item (g), “whether the trial date or the likely trial date can still be met if relief is granted”.
Lord Justice Kay:
Sir Christopher Staughton: