England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
Mr Robert Miles QC (sitting as a Deputy High Court Judge)
[2015] EWHC 969 (Ch)

		Royal Courts of Justice Strand London, WC2A 2LL
		3 March 2016

1. SIR COLIN RIMER: This is a renewed application by the claimant, Mekobia Limited ("Mekobia"), for an extension of time for appealing and, if granted, for permission for a second appeal. There is also an application to admit fresh evidence and for a stay of insolvency proceedings. Mekobia is now in compulsory liquidation as a result of a winding up order made on 30 June 2015. It has been purportedly represented by Mr J. Williams, a former chief executive. I shall come later to Mr Williams' right to represent Mekobia on this application in the light of the winding up order to which I have just referred. The defendant/respondent is Brandmovers Europe Limited ("Brandmovers"), which has not been represented. Kitchin LJ refused permission to appeal on the papers on 29 July 2015.
2. The proposed appeal is against an order of 22 January 2015 made by Mr Robert Miles QC, sitting as a deputy High Court judge in the Chancery Division. Although originally the appellant's notice claimed also to be appealing against an order of Birss J dated 23 January 2015, an appeal against that order has since been expressly deleted from it. I shall come later to the order that Birss J made.
3. As for the deputy judge's order, he was dealing with Mekobia's appeal against an order made in the Central London County Court on 16 December 2013 by His Honour Judge Saggerson. Mekobia claims, as I follow it, that he was also (or at any rate should have been) dealing with an appeal against an earlier "unless" order made by Judge Saggerson on 29 November 2013, but I shall come to why there is a difficulty about that suggestion. For reasons explained in his judgment of 22 January 2015, the deputy judge dismissed the appeal. The proceedings have something of a history which I must first explain in order then to be able to consider whether there is merit in any of Mekobia's applications to this court.
4. In June 2013, Mekobia issued a claim form in the Central London County Court against Brandmovers, claiming damages for alleged breach of contract. Mekobia also issued an application notice seeking interim relief in its claim, namely orders enjoining Brandmovers from presenting a winding up petition against it, the reinstatement of its website and the return of an advance payment it had made to Brandmovers. The background to the claim was that Mekobia had entered into a contract for the provision by Brandmovers of website development services. Brandmovers did provide some services and Mekobia made some advance payments to it, but a dispute then arose, with Mekobia claiming that Brandmovers had repudiated its contract and had rendered the website inoperable.
5. On 5 September 2013, His Honour Judge Dight struck Mekobia's interim application out, made an order for the service by Mekobia within a specified time of particulars of claim complying with CPR Part 16.4, and fixed a CMC for 27 September 2013. He also ordered Mekobia to pay Brandmovers' costs of the application by 19 September 2013, which he summarily assessed at £4,000. The outcome of a further hearing on 27 September was that Her Honour Judge Walden-Smith made a further order in relation to the service by Mekobia of particulars of claim, this time in "unless" form, and also ordered Mekobia to pay the costs of that hearing, which she summarily assessed at £1,075, the payment to be made by 11 October 2013. The amounts of those two costs orders thus totalled £5,075.
6. Mekobia failed to satisfy either of the September costs orders and so, unsurprisingly, on 17 October 2013 Brandmovers applied to strike out its claim for such non-compliance. That application came before Judge Saggerson on 29 November 2013, who made an "unless" order to the effect that unless Mekobia paid the costs earlier ordered of £5,075 by 4 pm on 6 December 2013, its claim "stands automatically struck out without further order of the court with effect from 4.01 pm on 6 December 2013".
7. The claim that would be so struck out was Mekobia's claim in the proceedings for the reinstatement of its website and damages; in other words, that claim would come finally to an end and Mekobia would not be entitled to pursue any aspect of it any further. It was, therefore, an order with potentially drastic consequences for Mekobia, although it is unclear to me that Mekobia ever properly understood the potential seriousness of the order. Judge Saggerson also ordered Mekobia to pay the costs of the application by 4 pm on 20 December 2013, which he assessed at £2,694. The order records that Mekobia was represented at the hearing by Mr Williams.
8. On 3 December 2013, Mekobia served an application notice seeking, in section 3: (i) a setting aside of the order of 29 November 2013; and (ii) the reinstatement of the website and the return of the advance payments it had made. Paragraph 3 of section 3 of the notice set out six grounds on which the two heads of relief were sought, which went to the fairness of the order of 29 November and the correctness of the order of 5 September, neither of which had been the subject of any appeal or, as yet, any proposed appeal, and to the fact that Mekobia was still being denied access to its website and had not received back its advance payments. As for the order of 5 September, the notice asserted that it was made in the absence of Mekobia although the order itself recites that Mekobia's representative arrived late and that the court then revisited (which I interpret as meaning reconsidered) the orders that it had proposed to make and which it then proceeded to make.
9. As that application of 3 December was seeking the setting aside of the order of 29 November, I am not convinced there was any arguable substance in it. Whilst there are circumstances in which a party can apply to the court that has made an order for its setting aside, such circumstances are few and were probably not, so it seems to me, available to Mekobia in relation to the order of 29 November. It could have applied to the court to be relieved against the sanction imposed by the order of 29 November, but that is not what it was doing. If it wished to challenge the order, its proper course was to seek to appeal against it to a High Court judge, for which it would need permission. Any challenge to the earlier order of 5 September had also either to be made by an appeal or perhaps, if it was in fact made in Mekobia's absence (although the order suggests it was not), by an application to set it aside. But the application notice of 3 December did not seek the setting aside of the order of 5 September; it sought only to set aside that of 29 November.
10. Save that I would comment that it was expressed in an ill-drawn form, it is therefore no surprise to me that Judge Saggerson's order of 16 December 2013 recorded that he declined to consider Mekobia's application. His order said that the application of 3 December was "(1) not an appropriate application; (2) if dissatisfied they must appeal". Judge Saggerson ought, in my view, simply to have dismissed the application, although that is in substance what he did.
11. The parties agreed before the deputy judge that paragraph (2) of Judge Saggerson's order was a reference to the making of an appeal against the order of 29 November 2013. His order was saying that if Mekobia wanted to pursue further its challenge to that order, it had to seek to appeal against it. Subject, however, to any successful appeal, that order would take effect according to its prescribed terms. By that I mean that, as Mekobia had not complied with its requirement for the payment of the costs of £5,075 by 4 pm on 6 December 2013, its effect was that Mekobia's claim was automatically struck out. Mekobia could only hope to avoid that disastrous consequence either (1) by a successful appeal against the order of 29 November or (2) by a prompt application to the County Court to be relieved against the strike out sanction imposed by the order of 29 November, to which end it would have to pay the costs that had been ordered and satisfy the court that there were proper grounds upon which it could be merciful.
12. Mekobia did not take the latter course, but it did then issue an appellant's notice in the High Court against both the order of 29 November and also Judge Saggerson's order of 16 December. I am told that the appellant's notice was issued on 7 January 2014, but it is not a document that Mekobia has included in the bundle before the court; nor has Mekobia included its skeleton argument for that appeal. In the light of the problems raised by this case, I would have found it helpful to have seen both documents. Mekobia needed permission for both such appeals. Peter Smith J, in the Chancery Division, initially refused permission on the papers, but he then heard an oral renewal of the permission application on 16 October 2014 which was presented to him by Mr Williams. Brandmovers was not represented.
13. I have a transcript of Peter Smith J's oral judgment delivered on that application. He explained in paragraph 1 that the permission application was in respect of Judge Saggerson's two decisions of 29 November and 16 December 2013. He then dealt, first, in paragraphs 2 to 5, with the application to appeal against the order of 29 November, opening that part of his judgment by describing the application of that day as "an application to review an assessment of costs made in September 2013". That was an inaccurate explanation of the application resulting in the order of 29 November, which was one by Brandmovers for an "unless" order against Mekobia. I take the reference to the costs assessment as being to that made by the order of 5 September 2013. Peter Smith J said that Judge Saggerson had refused the application to review that assessment, but had, however, re-assessed the costs and had gone through the bill. Peter Smith J said that Judge Saggerson had then done the same "in respect of the second schedule of costs and summarily assessed those". I take that to be a reference to the costs order of 27 September 2013, although I may be wrong about that.
14. Peter Smith J continued in paragraphs 3 to 5 as follows:

"3. For an appeal to be made it has to have a real prospect of success. In relation to the assessment of the costs it must be shown not that I as a judge assessing the costs would have come to a different conclusion but that the conclusion of the judge was so unreasonable no judge could have come to that decision. Equally, his decision not to set aside the order originally made in September is a matter of discretion in the exercise of the hearing and I have no material to say his decision to refuse to set aside the September order was wrong. When it comes to the assessment of the costs this is a very experienced judge and he went through both costs schedules and certainly in respect of the later one he substantially reduced the costs by nearly a half.

4. Mr Williams has pointed out a number of matters which he says were not the subject matter of the application that was before the judge. The most obvious one of that is drafting the defence and counterclaim which was put in at £1,000 and the judge reduced it to £500.

5. I can see why Mr Williams might challenge that, but looking at the schedules that is the only matter to my mind which is questionable. I am not persuaded when looking at the overall bill that the bill is unreasonable at £2,519. In my view it would be wholly disproportionate and the waste of the court's time to allow an appeal to argue over the sum of £500. It is just not cost effective. For those reasons I will refuse the appellant permission to appeal the costs orders."

15. That conclusion was reflected in paragraph 1 of Peter Smith J's order of 16 October 2014, which provided that: "The application for permission to appeal against the costs order dated 29 November 2013 be refused."
16. I am, with respect, puzzled by Peter Smith J's decision in relation to the order of 29 November. First, I do not understand paragraph 4 of his judgment. If the reference to "the judge" is to Judge Saggerson, its two sentences do not appear to me to be easily reconcilable. Second, I do not know to which bill of £2,519 Peter Smith J was referring and no costs order made against Mekobia was in that sum. Third, if the tenor of what Peter Smith J was saying was that at the hearing on 29 November Judge Saggerson not only re-assessed the September costs bills but also reduced the bill of the 27 September 2013 hearing by half, I would expect that reduction to have been reflected in Judge Saggerson's order of 29 November. But it is not. The costs ordered on 5 September 2013 were £4,000 and those ordered on 27 September 2013 were £1,075. Those two sums total £5,075, and Judge Saggerson's order of 29 November 2013 made an "unless" order requiring the payment of that sum, £5,075, by 4 pm on 6 December 2013. Fourth, it is also apparent, if I may say so, that Peter Smith J did not understand the "unless" nature of the order of 29 November 2013 against which he was, so I infer, refusing permission to appeal.
17. In elaboration of that, Peter Smith J's refusal of permission to appeal against the order of 29 November produced the consequence that the "unless" order had taken effect unappealably according to its terms and resulted in Mekobia's claim being struck out at 4.01 pm on 6 December 2013. That refusal of permission therefore marked the end of the road for Mekobia in its claim against Brandmovers because there is no appeal to the Court of Appeal against the refusal of permission to appeal by a High Court judge against a decision of a County Court: see section 54(4) of the Access to Justice Act 1999.
18. If Peter Smith J had been aware of the "unless" nature of the order of 29 November 2013, and of the consequence of his refusal of the permission application in respect of that order, he could and would not, so it seems to me, then have proceeded to deal in the way he did with the second head of Mekobia's appeal, namely a complaint that Judge Saggerson had refused on 16 December 2013 to entertain Mekobia's interim application in its proceedings for the reinstatement of the website and repayment of the advance payments. Peter Smith J's conclusion with regard to that limb of the applications before him was that Mekobia ought to have permission to appeal against Judge Saggerson's refusal of that head of relief, and he referred to the fact that all he had as to why Judge Saggerson had refused the application was because it was "not appropriate", a reference to paragraph 1 of Judge Saggerson's order of 16 December 2013.
19. Paragraphs 2 and 3 of Peter Smith J's order of 16 October 2014 then gave Mekobia permission to appeal against "the Order to unlock the website", with the order setting out an elaborate list of heads of relief that Mekobia should be asking for against Brandmovers. Those paragraphs provided, in ill-drafted form:

"2. The Application for permission to appeal against the Order to unlock the website of the Appellant be allowed. Such appeal is to be listed with a time estimate of half a day.

3. The Appellant if permission be granted shall seek the following relief against the Respondents by way of summary judgment namely that Respondent..."

20. The drafting was inappropriate because no order had been made to "unlock the website". The application that came before Judge Saggerson on 16 December did include an application to unlock the website, but the application was refused.
21. Having ruled as he did in relation to the 29 November order, Peter Smith J's further order was, so it seems to me, inconsistent and unsustainable. A court cannot give a claimant permission to appeal a refusal of interim relief in a claim which has by then been finally struck out. That is because there are no extant proceedings in which the appeal can be pursued. The permission he gave was to pursue heads of relief the claim for which was finally barred by the effect of the "unless" order of 29 November 2013.
22. The substantive appeal that Peter Smith J had permitted came before the deputy judge on 22 January 2015. Mr Williams once again represented Mekobia. He sought to invite the court to go into the merits of his claim in relation to the website and for repayment of the advance sums. For Brandmovers, predictably and unsurprisingly, the point was taken that the effect of Peter Smith J's order of 16 October 2014 was to refuse permission to appeal against the order of 29 November with the consequence that, as that order had had the effect of automatically striking out Mekobia's claim as from 4.01 pm on 6 December 2013, there was no extant claim in which it could pursue its website and repayment claims and therefore the appeal against the refusal to grant such relief must necessarily fail. On the face of it that was obviously a powerful argument.
23. The deputy judge analysed the procedural background shortly and explained in paragraphs 21 to 23 why he regarded Brandmovers' contention as correct. He said:

"21. As for the order of 29 November 2013, Peter Smith J refused permission to appeal against that judgment and therefore the order stands. The effect of the order of 29 November 2013 is, as I say, that the action was automatically dismissed on 6 December 2013. It therefore follows that there are no proceedings on foot, and indeed there have been no proceedings on foot, since 6 December 2013. It also follows, in my judgment, that there is no room for argument or debate about the underlying dispute because there are no extant proceedings.

22. It appears to me clear that Peter Smith J, who of course did not have the benefit of adversarial argument and did not appear to have a full understanding of the history, gave permission under the misapprehension that the hearing on 16 December 2013 was a hearing about the merits of the application for an injunction and that, when the order said that, 'if dissatisfied, the appellant must appeal', Peter Smith J understood that not as a reference back to the order of 29 November 2013 but to the order that was being made on 16 December itself.

23.It seems to me that, once one understands the history properly, it is clear that on 16 December, having decided not to set aside the order of 29 November, His Honour Judge Saggerson considered, and rightly considered, that the proceedings had been dismissed. Therefore, there was nothing further for him to consider in relation to the underlying dispute."

24. The deputy judge then considered and rejected a number of points as to why Mekobia should nevertheless be entitled to pursue its claim in respect of the website and for damages. Ultimately, however, it all came down to a short point, namely that once permission to appeal against the "unless" order of 29 November 2013 was refused, the position was that Mekobia's claim had been finally struck out by the effect of that order and that was the end of it. The deputy judge's order was sealed by 3 February 2015.
25. In the meantime, on 21 November 2014 Brandmovers served a statutory demand on Mekobia for payment of the costs ordered by the order of 29 November 2013. Mekobia did not satisfy the demand and on 17 December 2014 Brandmovers presented a winding up petition. Mekobia applied on 23 January 2015 to Birss J for an order restraining its advertisement and barring Brandmovers from presenting any further petition. Birss J dismissed that application with costs and on 30 June 2015, as I have said, a winding up order against Mekobia was made. Mr Williams tells me that an appeal against that winding up order is pending.
26. Mekobia now seeks permission to appeal against the deputy judge's order. The permission sought is of course for a second appeal and so permission will not be given unless the appeal would satisfy one or other of the criteria of CPR Part 52.13. One further and material practical difficulty it faces, of which Mr Williams is now aware because I have explained it to him in the course of this morning's hearing, is that as Mekobia is in liquidation it follows that he therefore has no authority to represent it on an application of this nature. Any claim (if any) that Mekobia may have against Brandmovers is an asset of Mekobia and it is exclusively for the official receiver or a liquidator, if one is appointed, to decide what, if anything, he wants to do about it. Mekobia is not entitled to continue to operate by its former agents as if the liquidation had never happened. That is because the effect of the winding up order was to terminate the authority of Mekobia's former directors and other agents to act upon its behalf: see, for example, In re Farrow's Bank, Limited [1921] 2 Ch 164, at 173-174.
27. That consideration appears to me probably to present a fatal difficulty in relation to this application, at any rate as matters stand at present, since I do not see how the court can properly give permission for Mekobia to pursue an appeal which is being promoted without authority. One answer to that would, however, be to adjourn the present application so that Mr Williams could approach the official receiver or liquidator (and I understand that so far no liquidator has been appointed) with a view to obtaining the necessary authority, perhaps by way of an assignment to him of Mekobia's cause of action against Brandmovers.
28. Leaving that point aside for the moment, and turning now to the merits of the application (and subject also to what I shall later say about what I will propose as the way forward), I would analyse the procedural position in essentially the same way as did the deputy judge, an approach which Kitchin LJ shared when he refused permission on the papers. The point upon which the deputy judge disposed of the appeal that was before him was a short and simple one, and I cannot at the moment see any arguable answer to it. Before coming to my decision as to the further disposal of this application I shall, however, first refer to the essence of the various points made by Mekobia in support of its application for permission.
29. Mekobia's case for seeking permission for a second appeal is set out in a 26-page, 106-paragraph skeleton argument prepared by Mr Williams, which he has supplemented by a statement he has produced to me this morning. Mr Williams is not a lawyer but he obviously has some legal understanding, and I commend the skill that he has applied in the preparation of the documents in support of this application. Despite, however, the considerable effort that he has put into them, I have to say that, in my judgment, the totality of his effort still falls significantly short of mounting a case as to why the reasoning or decision of the deputy judge was wrong. I shall refer to the main points taken.
30. First, it is said that the terms of the deputy judge's order of 22 January 2015 are in dispute, although the skeleton argument does not explain what the dispute is. If there is a dispute as to whether the order correctly reflects the order the judge made, that may be a matter that needs to be referred to the deputy judge. It is not a matter for this court.
31. Second, it is said that Mekobia, meaning Mr Williams, was not provided with Brandmovers' skeleton argument used at the hearing before the deputy judge. Mr Williams told me that the first time he saw it was when it was produced to him following the making of the winding up order.
32. I find it surprising that Mr Williams was not provided with a skeleton argument at the hearing before the deputy judge, since I presume he knew that Brandmovers had produced a skeleton argument for the hearing. He could have asked for a copy at the hearing and it seems to me that, had he done so, he would have been provided with one. I have not been told by Mr Williams that he did make such a request, nor is there any correspondence in the bundle that I have showing that Mekobia ever asked Brandmovers to supply a copy. But leaving all that aside, the point now made is that the judge relied on the skeleton in making his decision and so the failure to put Mr Williams in a position in which he could respond to the skeleton at the hearing meant that the hearing before the deputy judge was procedurally unfair.
33. The failure to provide Mr Williams with the skeleton argument was obviously a shortcoming. If, moreover, the judge had said in his judgment no more than that he was dismissing the appeal for the reasons given in the skeleton argument, without explaining what those reasons were, that would obviously give Mekobia real grounds for concern as to the fairness of the hearing and any bid to challenge his unexplained decision on an appeal would be likely to be sympathetically received. That, however, is manifestly not this case. In this case the judge has given his reasons for his decision in his judgment, he has not suggested there were any other unexplained reasons for it, and Mekobia knows precisely what his reasons were. If Mekobia wishes permission to appeal it is for Mekobia to mount its case as to why the judge was wrong, and for that purpose it does not need Brandmovers' skeleton argument; it has the judge's judgment and is in a position to identify any arguable errors in it.
34. Third, Mekobia's skeleton argument provides an extensive explanation of the background to the litigation and of (so it would assert) the merits of its underlying claim. With respect, I regard all that as unhelpful. I am prepared to assume that Mekobia's original claim had merit. But the only substantive question at present is whether Mekobia has any seriously arguable case that the deputy judge was wrong to hold that the claim was struck out with effect from 4.01 pm on 6 December 2013 and, if so, whether such a case is appropriate as the subject of a second appeal.
35. To that end it is not obvious to me that assertions as to the claimed strength of Mekobia's claim are of any direct relevance. The hard facts are that Mekobia was faced with costs orders that it declined to satisfy, and then it became faced with an "unless" order which it also declined to satisfy. In the events that have happened, it appears to me, as it appeared to the deputy judge and Kitchin LJ, that that resulted in its action being struck out on 6 December 2013. If so, the Court of Appeal cannot do anything about that now because Mekobia's bid to challenge the order of 29 November 2013 by way of an appeal came to an end with Peter Smith J's refusal of permission, a refusal against which no appeal lies to the Court of Appeal.
36. Fourth, criticisms are made as to the original making of the "unless" order of 29 November 2013. Even if these points are of substance, they do not amount to an answer to the deputy judge's conclusion that the "unless" order had already taken effect. The justice or otherwise of its original making were not matters before him. That is because he concluded, it seems to me probably correctly, that Peter Smith J had refused permission to appeal against the order of 29 November 2013.
37. Fifth, it is said that the deputy judge failed to understand paragraphs 2 and 3 of Peter Smith J's order of 16 October 2014. The essence of the point made is that by those paragraphs Peter Smith J was in fact giving permission to appeal against the "unless" order, and it is suggested that the true sense of his order emerges if paragraph 2 is read as if it had said: "2. The application for permission to appeal against the said Order, to unlock the website of the Appellant be allowed. Such appeal is to be listed with a time estimate of half a day".
38. I do not, with respect, regard that argument as having any substance to it. First, the order of 29 November was nothing to do with the unlocking of the website. It was an order made on Brandmovers' application and there was no cross application by Mekobia before Judge Saggerson on 29 November for such unlocking. Second, Mekobia's application to unlock the website was made in its application notice of 3 December, one which was in substance dismissed on 16 December. Third, Mekobia then appealed against both the order of 29 November and that of 16 December. Fourth, Peter Smith J's judgment records that he had appeals before him against both the order of 29 November and that of 16 December. He dealt first with the order of 29 November, which he misunderstood as having resulted from Mekobia's bid to review the earlier costs orders. He dealt next, by inference, with the order of 16 December, which he regarded as having refused to unlock the website. It is obvious that paragraphs 2 and 3 of his order were referring to the appeal against the order of 16 December. If they were not, by which provision in his order did Peter Smith J deal with the application for permission to appeal against the order of that date?
39. Sixth, there is a criticism of the deputy judge's conduct of the appeal. It is said that he should have recognised the merits of Mekobia's underlying claim and should somehow have undone the effect of the "unless" order. I do not understand this line of criticism. If, as he concluded, Mekobia's fate in that regard was sealed by Peter Smith J's refusal of permission to appeal against the "unless" order, it was not open to the deputy judge to undo that order.
40. The deputy judge is also criticised for refusing to give permission to the Court of Appeal. In fact, he had no jurisdiction to do so, since any appeal would be a second appeal for which only the Court of Appeal can give permission. It is said that he refused to allow Mekobia to give evidence in support of its case. If he did, he was entitled to do so. What was before him was an appeal by way of a review, not a rehearing. Evidence is not ordinarily admitted on the hearing of an appeal. It is said that he appeared to have acted so as to limit the scope of the appeal before him, pointing out that Peter Smith J had been wrong to permit the appeal on the interim relief issue. As to that, the deputy judge was simply focussing upon the legal position as he saw it and I have given my reasons as to why I agree with him.
41. Then it is said that the deputy judge and counsel for Brandmovers were colleagues practising in the same fields of law and occupying adjoining chambers, and that there was also a possibility that Brandmovers' instructing solicitors might have some professional association with the deputy judge. That is all said to give rise to a presumption of apparent or actual bias on the part of the deputy judge. It is said that he ought to have offered to recuse himself.
42. There is nothing in this point, and nothing else said in the skeleton argument provides any basis for any inference of bias on the part of the deputy judge. Deputy judges will commonly know barristers who appear in front of them, just as full-time judges will. The skeleton argument does not begin to make out a suggestion of bias. As for the suggestion that some conflict might have been presented to the deputy judge by reason of the possibility that there had been some association between him and the solicitors instructing Brandmovers' counsel, if the deputy judge did in fact have any connection with those solicitors, as to which there is no evidence, then if he had considered there was any possibility of any conflict he might well have considered it appropriate to recuse himself. He did not, however, make any such suggestion and there is no basis for inferring that he ought to have done so or to have recused himself from the case.
43. Apart from the difficulties which this application faces on the merits and on the fact that Mr Williams has, as I have explained, anyway no authority to pursue it, there is also another problem. As is common with permission applications promoted by litigants acting in person, Mekobia was late in its appellant's notice, by some 11 days. It asserts that it was burdened at the time not just with the pressure of dealing with the appeal but also with the pressure imposed on it by the winding up petition. In addition, its bank account was in consequence frozen and it also says that it was advised by its solicitors at short notice that they would be unable to instruct counsel in time for assistance with the filing of the appellant's notice. Mekobia applied to the Chancery Division by a letter of 6 February explaining the difficulty its solicitors had raised and asking for the matter to be referred to the appropriate judge for an extension of time. If there was a reply to that letter, it is not in the bundle before me. No such extension was granted. The time for filing passed and then the notice was filed out of time. Mekobia makes the point that the trial of its claim has not yet been listed and so it says that an extension of time will not cause a delay in the listing and no prejudice to Brandmovers will result. It is of course no surprise that a struck-out claim has not been listed for trial.
44. As matters stand at present, therefore, I assess that there are considerable difficulties in the way of giving Mekobia permission to appeal. In addition, Mekobia's overall merits seem to me to be extremely poor. It did not decline to pay the costs ordered by the "unless" order because it had no money with which to pay them. From what Mr Williams has told me, it deliberately refused to pay those sums on the basis, as I understand it, that because it had a claim against Brandmovers which it believed overtopped the amount of those costs it was entitled simply to refuse to satisfy the court orders.
45. That was a wrong stance for Mekobia to adopt. The fact that it may well have had (and I am prepared to assume did have) a good claim for damages exceeding the amount of the costs orders is no answer to its refusal to pay those costs which the court had ordered it to pay, and its failure to do so ultimately led to the serious problems in which it now finds itself. Those problems were self-induced by its own refusal, against all the risks that it thereby incurred, to pay the costs.
46. All that said, I have over the last few days given anxious consideration as to how best to deal with this application. I was for a while provisionally minded simply to refuse it, since there seemed to me to be so much stacked against a successful appeal and so little in support of it that that appeared to me to be the appropriate course to take. I have, however, also been concerned that so to dispose of this application would be likely to leave Mekobia with a material sense of injustice. I do not consider that Mekobia can fairly regard the deputy judge as having in any way failed it, although it has made it plain that it does. As it seems to me, he discharged his judicial duty on the material before him in what appears to have been a careful, conscientious and considered way, although I recognise that Mekobia does not like what he ultimately decided.
47. The real problem in my view (although Mekobia does not share this view) is the decision of Peter Smith J which, if I may say so with respect, leaves me in a state of reasonable confidence that he did not fully understand what it was that he was doing. For reasons I have given, I consider that he cannot have understood that the order of 29 November was an "unless" order. If he had understood that, and had also understood that the effect of paragraph 1 of his order was to make the "unless" order unappealable and so bring the claim to a final end, he would not, so it seems to me, also have made the orders he did in paragraphs 2 and 3, being orders that assume that the claim was continuing in existence. The serious internal inconsistency in his order convinces me that, with due respect to him, he did not understand the effect that his order was destined to have; and, as follows, that had he properly understood the nature of the two orders with which he was dealing he would not have made an order in the terms that he did.
48. Assuming all that to be correct, there is, however, still a major question as to the nature of the order that he would have made if he had fully understood the position. In these circumstances, I consider that the appropriate order to make today is to adjourn this application until the first available date after 26 May 2016, which is 12 weeks from today, although Mekobia will have liberty to apply to restore it for hearing at an earlier date if it should wish to do so. During that time, Mr Williams must first approach the official receiver (or any liquidator of Mekobia, if appointed) with a view to obtaining authority for him to continue to promote Mekobia's appeal. Subject to that, I would give Mekobia the opportunity to apply to Peter Smith J under the provisions of CPR Part 52.17 with a request to him to reconsider the permission applications that were before him on 16 October 2014. That request should be accompanied by (inter alia) transcripts of the deputy judge's judgment and of this judgment, together with such representations as Mekobia may wish to make as to how Peter Smith J should deal with such reconsideration.
49. It will then be for Peter Smith J to decide whether that application is one that he either can or should entertain. Of course, if he does entertain it, there can be no certainty that the outcome will be favourable to Mekobia; it may even be more adverse than appears to me to be the effect of the order he in fact made. Mekobia would be well advised to obtain the assistance of lawyers in mounting that application.
50. I shall finally direct that the production of a transcript of this judgment shall be expedited.