England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		7 Rolls Building Fetter Lane London EC4A 1NL
		12 June 2013

Wednesday, 12 June 2013

MR JUSTICE SALES:

1. This is being treated as a substantive application by Crayford Estates which has appeared by Mr Holden who, with my permission, has been allowed to address the court on its behalf, to seek an extension of time in relation to an unless order that I made originally on 26 April 2013, requiring filing of a transcript so that a late application for permission to appeal in respect of a series of hearings and orders made on 21 October 2010, 9 January 2013 and 28 January 2013, could be considered.
2. The background relates to a vesting order made by Master Moncaster in respect of a residential property in favour of the respondent, by his order dated 21 October 2010. Since that time, the appellant, Crayford Estates, which had been removed from the Companies Register, has had itself restored to the Register and has, at the further hearings in 2013 before Master Marsh, sought to have the vesting order set aside, unsuccessfully. The issue for this proposed appeal, which Crayford Estates seeks to bring forward, is to seek to appeal in relation to those orders, so as ultimately to reverse the vesting order in favour of the respondent.
3. There was a hearing before me on 26 April 2013 at which Crayford Estates was represented by counsel. On that occasion, I had understood that there was to be an oral hearing on the application for permission to appeal out of time, but owing to some confusion that hearing could not go forward on that basis. I was told on that occasion that the transcripts of the judgments below were not available and counsel for Crayford Estates asked for a short extension of time for them to be obtained. I granted an extension of time for the transcripts to be obtained and filed by 13 May 2013, failing which the appeal was to be treated as being struck out. I was not told on that occasion, as has emerged from what Mr Holden has told me today, that the application for the transcripts was made as late as 16 April 2013 and that the transcribers had already spoken to Mr Holden for Crayford Estates on about 19 April to say that the existing recordings which they had received had been corrupted, so that they had to go back to the court.
4. On 10 May, Mr Holden for Crayford Estates sent an email to my clerk asking for a further extension of time. I indicated that that should be done by proper application. Neither the email nor the application, as it now appears, were notified to the respondent. On the basis of a witness statement of Joseph Huss, dated 13 May 2013, I granted the extension of time of 14 days which was requested. That witness statement did not explain the background of discussion with the transcribers about problems in obtaining uncorrupted recordings and the delays which might flow from that. I granted the extension of time - still in the context of an unless order - over until 4 pm on 27 May 2013, that being the period which had been asked for in Mr Huss's witness statement.
5. In the reasons set out in the order, I said this:

"Since there appears to have been some delay on the part of the courts concerned in providing the transcripts, it is fair to the Appellant to be granted this further extension of time. The Appellant should note that it is unlikely that any further extension of time will be granted. The Appellant left it very late indeed (until 16 April 2013) before ordering the transcripts, after hearing/orders dated 21 October 2010, 9 January 2013 and 28 January 2013, and has offered no explanation why. It is unlikely it will be appropriate to grant the Appellant any further latitude, other than in the most compelling circumstances, and on the basis of evidence giving a very full and particularised explanation of all communications with the transcribers and courts."

6. On 28 May 2013, Joseph Huss sent an email to my clerk attaching a letter received from the transcribers and asking for a further extension of time. The letter was dated 24 May 2013 addressed to Mr Holden. It said:

"Further to your EX107 request for a transcript which was signed and filed on 16 April 2013, I confirm the following details. On 18 April we received CDs of audio for the hearings from the court. Unfortunately the CDs were corrupt and we could not play them. I duly requested replacement CDs from the court recording office and only received them yesterday. In the circumstances, I am afraid it will be impossible to produce transcripts by 28 May.

I am sorry for the frustrating delays we have encountered in this matter. I will get back to you with a revised time estimate once I can locate the hearings and judgment on the audio the court has provided and work out how much work is involved."

7. I was not sitting in this Division at that time and accordingly Mr Holden appeared in the interim applications court to make an application to David Richards J for a further extension of time on the basis of the letter received from the transcribers. That application again was not made on notice to the appellant. Mr Holden persuaded David Richards J to grant a further extension of time for the filing of the transcript to 17 June. He tells me that he showed David Richards the order that I had made on 13 May 2013.
8. For reasons which I have explained earlier in the hearing, in view of the fact that the appellant was given no notice of either the applications or the evidence relied upon for the applications to extend time, nor indeed shown copies of the orders that were made by the court, I consider that as a matter of fairness it is right that this court revisit the substance of the application which was made to David Richards J, with the benefit of submissions from the appellant.
9. Approaching the matter in that way, I consider that it would not be fair, just or appropriate to grant the extension of time sought by Crayford Estates for compliance with the unless order made by me on 26 April 2013 and extended by me on 13 May over until 27 May.
10. As I made clear in the observations set out in the reasons for the order made on 13 May, if the appellant was to seek any further extension of time, it would have to show that the most compelling circumstances existed and should provide evidence to the court giving "a very full and particularised explanation of all communications with the transcribers and courts" in order that the court on considering such an application for an extension of time could examine in detail exactly what had been passing between the appellant and the transcribers so as to satisfy itself that the appellant really had been doing all it could to ensure that the transcript was made available as promptly as possible.
11. On the hearing today I have had the benefit of considering the witness statements that were available before David Richards J, which are a witness statement of Joseph Huss dated 24 May 2013 and a witness statement of David Holden dated 11 June 2013. It seems to me on reading those materials and the letter from the transcribers, that the court was not informed by those documents with full particularity of all the communications with the transcribers and the courts. When I asked Mr Holden about this, he gave an account which made it quite clear that there had been other communications, not dealt with in these witness statements between the transcribers and the appellant.
12. Accordingly, I am not satisfied on the basis of the material that has been put before me, that the appellant has provided the very full and particularised explanation of all communications with the transcribers and courts which they were on notice from my order of 13 May would be required if they were going to seek the further extension of time which they now do.
13. In the circumstances, I am not satisfied that the appellant has taken all proper and appropriate steps to ensure that the appeal bundle, including transcripts, was prepared in proper time and as promptly as possible, in particular after Mr Holden was informed on 19 April, as he tells me, that there was a problem with the tapes. It seems to me that it would have been readily within the power of Crayford Estates in those circumstances promptly to have got directly in contact with the court to explain the importance, particularly in light of the orders that this court had made, of obtaining new recordings that the transcribers could prepare.
14. The letter from the transcribers of 24 May 2013 does not indicate that any such steps were taken, nor does anything that Mr Holden has said to me today indicate that anything like that was done. Moreover, there are distinct oddities in the background circumstances which give further cause for concern that the appellant has not been seeking to progress the appeal in this matter as promptly as it should have done in compliance with the rules. In particular, the appellant's notice in this matter, filed on 15 February 2013, stated that the transcript of judgments in relation to the orders to be appealed from would be supplied on 4 March 2013. That does not accord with the explanation given in the witness statement of Joseph Huss dated 24 May 2013, where he said that the reason for the lateness of the request for the transcripts on 16 April 2013 was that the case was related to another case in relation to which there was a further hearing before Master Marsh on 28 March and the decision was taken to wait to obtain the transcripts in relation to both matters simultaneously in order for both appeals to be heard together. That is an account which plainly does not correspond with the statement in the notice of appeal, which stated that the transcripts would be supplied by 4 March 2013.
15. Moreover, at the hearing before me on 26 April 2013, counsel for the appellant, Crayford Estates, did not suggest that the reason for the delay in obtaining the transcripts was that such a decision had been made to wait before asking for the transcripts to be produced. Further, I am not satisfied that, even if the statement in Mr Huss's witness statement were true (which is difficult to reconcile, as I say, with the notice of appeal), that that would represent a proper and compelling reason for the original delay in waiting until 16 April to seek the transcript in relation to the matters to which the appeal by Crayford Estates relates.
16. These matters underline the court's concern that, contrary to the indication I gave in the order I made on 13 May, the appellant has not given a full and particularised explanation of the background to the delay in obtaining the transcripts. The court is not satisfied in all these circumstances that there are proper and good reasons for the delay that has occurred.
17. For all these reasons, I refuse the application for an extension of time in relation to the order of 26 April as amended by order on 13 May. Accordingly, the appeal by Crayford Estates stands as struck out. The reasons I have given are all put forward on the basis of a consciousness of the overriding objective and in seeking to balance the relevant aspects of the overriding objective, having regard to the importance of ensuring that matters are dealt with properly and promptly and in accordance with the rules and orders of the court, but also having regard to the desirability that matters of substance between the parties can come forward for a hearing on the merits. Balancing the competing interests of Crayford Estates and the respondent in relation to the present appeal, and now with the benefit of submissions from the respondent, the balance comes down clearly, in my view, in favour of refusing the extension of time sought.

[After further submissions]

18. The respondent applies for an order that the appellant pay the respondent's costs of the hearing today and also, since the appeal stands as dismissed, that the appellant pays the respondent's costs on the appeal. Mr Holden for Crayford Estates does not seek to resist costs orders in those terms.
19. In my view, it is appropriate and just that costs orders be made in those terms and accordingly I make those costs orders.