England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/02/2006

see also: Dalkia Utilities Services Plc v Celtech International Ltd (No. 1) [2006] EWHC 63 (Comm) (27 January 2006)

MR JUSTICE CHRISTOPHER CLARKE :

1. On Friday 27^th January I announced in open court that my judgment, which I had previously caused to be circulated in the ordinary way, should be treated as delivered. None of the parties attended when I did so because I had previously informed them that I would deal with all questions of costs, permission to appeal and the form of the order, at a later hearing fixed for Friday 17^th February. I was anxious that my judgement should be delivered when it was so that it should be available in public without delay.
2. By a letter dated 27^th January 2006, faxed to me on that date, Constant & Constant, the defendants' solicitors, asked me to extend the 14 day period for filing any Appellant's Notice so as to commence on 17^th February, and, if necessary, to extend the time for seeking oral permission to appeal.
3. On 31^st January Reynolds Porter Chamberlain, the claimants' solicitors, whilst not objecting to such an order, drew my attention to the provisions of CPR 52.4(2) (b) and the case of Yorkshire Water Services v Taylor Woodrow [2004] BLR 409. In that case Forbes, J had handed down his judgment on 8^th July 2004. On that date he made various consequential orders including an extension of time for applying for permission to appeal. He was not asked to give, and did not, therefore, give any direction with regard to the time for filing a notice of appeal. The unsuccessful claimant then made a further application for an extension of time (a) for applying for permission to appeal and (b) for filing the notice of appeal. Counsel for the successful defendant took the point, with some reluctance, that the judge dud not have the power to grant the latter extension as a result of the combined effect of CPR 52.3 (2) ; CPR 52. 4 (2) and CPR 52.6.
4. The learned judge was persuaded that the effect of these provisions was that, since he had made no direction extending time for filing a notice of appeal when he delivered his decision, only the Court of Appeal could thereafter extend time.
5. That decision was given on 23^rd July 2004. There was not, however, cited to Forbes, J. the decision of the Court of Appeal, given on 23^rd January 2004, in Aujla v Songhera [2004] EWCA Civ 121. Nor was that decision cited to me, although a reference to it appears at page 1465 of the White Book under the notes to CPR 52.4. That decision makes plain that it is open to the trial judge to extend the time for filing a notice of appeal even though he has made no such order at the time when he gives his decision and even if the 14 day time limit from the date of that decision prescribed by CPR 52.4 (2) (b) has expired.
6. I am, I am glad to say, bound by that decision. It would be most unfortunate if the course taken in this case of publishing the judgement but postponing for a short while the argument on costs and permission to appeal had the result that only the Court of Appeal could extend the time limit for filing a notice of appeal, whatever the circumstances.
7. I am quite satisfied that I should make the first order sought. I shall extend the time for filing a notice of appeal until close of business on Friday 3^rd March 2006. A modest extension is in my view entirely appropriate in a case of this kind, which involves a number of separate and complex issues of law and fact and where the relevant representatives of the would-be appellant are located abroad.
8. I do not believe that it is necessary for me to extend the time for the appellant to seek oral permission to appeal, since in the circumstances to which I have referred the hearing at which the decision was made may be said to have been adjourned to 17^th February, but, if it an extension of time is needed, then I extend it to 17^th February 2006.