England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/01/2014

Mr Justice Turner :

INTRODUCTION

1. This is another case about the consequences of failing to comply with the rules of court against the background of the Jackson reforms introduced on 1 April 2014.

BACKGROUND

2. The claimant sued the defendant in respect of losses alleged to have been incurred as a result of a negligent property valuation. In November 2011, the claim was settled. One of the terms of the compromise was that the defendant would pay the claimant's costs. On 17 April 2013, a detailed assessment hearing took place before Master O'Hare.
3. The defendant was not happy with the assessment and asked the Master for permission to appeal. He refused.
4. The defendant then sought, within time, to appeal this decision. On 29 July 2013, however, Haddon-Cave J. refused permission on paper.
5. The defendant's solicitors assert that they did not receive the order of Haddon-Cave J. until 10 October 2013 and I proceed on the assumption that this is the case.
6. On 22 November 2013, the defendant's solicitors served an application for an extension of time within which to seek an oral renewal of their application for permission. On 27 November 2013 the matter came before Blair J. who, having heard oral representations from an advoocate acting for the defendant, not only extended time but also gave the requisite permission.
7. The claimant now seeks to persuade me to set aside the order of Blair J.

THE LAW

8. The defendant concedes that this court has power to set aside or vary the order of Blair J. because the claimant was not represented at the hearing. The general power so to do is to be found in CPR 23.11(2).
9. In the circumstances of this case, it is entirely understandable that the claimant did not seek to make representations at the hearing in the light of the approach of the Court of Appeal in Jolly v Jay [2002] EWCA Civ 277.
10. I would observe, however, that the power of the court to revisit the decision of the single judge on a renewed application for permission at the behest of aggrieved respondents should be exercised sparingly. In Jolly the Court of Appeal observed at paragraph 45:

"In general it is not desirable that respondents should make submissions on the merits at the permission stage, because this may well lead to delay in dealing with the permission application and take up the resources of the appeal court unnecessarily."

11. These concerns must apply with the same, if not greater, force to applications to challenge permission decisions which have already been made following consideration by the single judge.
12. As this court observed in M A Lloyd & Sons Limited v PPC International Limited [2014] EWHC 41 (QB) at paragraph 14:

"Of course, the court has power under CPR 23.11 to re-list an application where it has previously proceeded in the absence of one of the parties but this is a power which is likely to be exercised sparingly in the light of the specific regard which the court must now have for the need, where reasonably practicable, to allot to any given case an appropriate share of the court's resources."

13. In this case, however, I am entirely satisfied that if Blair J. had had his attention specifically drawn to certain aspects of the application he would not have extended time and the appeal would have failed in limine.

THE HEARING BEFORE BLAIR J.

14. Firstly, it is apparent from his judgment that Blair J. was under the mistaken impression that time began to run against the defendant from the date of the paper refusal. In paragraph 1 of his judgment he observed:

"This is a renewed application for permission to appeal. Permission was refused on the papers by Hadden-Cave J. on 29 July 2013. Unfortunately, his order was not received by the appellant's solicitors until 10 October 2013. The delay in making this application is, therefore, understandable and if permission is to be granted then the necessary extension should also be granted."

15. However, CPR 52.3(5) provides that a request to renew an application for permission to appeal "must be filed within 7 days after service of the notice that permission has been refused".
16. It follows that the delay in the service of the notice could not, of itself, have been directly relevant to the application to extend time. Indeed, no such application would have been necessary if that had been the only delay. However, the case was presented as if the need for the application arose from the delay which had occurred before notice of the refusal had been received and not after. Having had an opportunity to read the transcript of the representations made to him I can well understand how Blair J. came to approach the case as he did. The representations made to him were phrased in such a way as to camouflage the real period of delay upon which his mind ought to have been focussed. By way of example only, the defendant's advocate said at one stage: "My firm received the order declining permission to appeal some two and a half months late, hence we are out of time in requesting an oral application for permission to appeal." This was simply wrong. There was no causal connection between the delay in receiving notice and the fact that the defendant was in default of CPR 52.3(5). I absolve the defendant's advocate from any suggestion that he deliberately misled the court but, on an objective analysis, the unintended impact of his representations was such as to mislead the court in a material respect.
17. Secondly, if Blair J. had had his attention drawn to the sequence of events after the date of receipt of the notice, he would have appreciated that the defendant's application for an extension was made well over 7 days after the order had been received and was thus seriously out of time.
18. Towards the end of his submissions before Blair J. the defendant's solicitor referred to the existence of the case of Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 153. Neither he nor the court had read the judgment in that case because it had only just been handed down earlier that same day. Clearly, the defendant's solicitor on a preliminary glance considered that the decision would help his clients because he intended to deploy it to demonstrate the substantive merits of the proposed appeal against the decision of the Master. However, Blair J. declined to reserve judgment to afford him an opportunity to read the Mitchell decision, doubtless because considered that he had already heard enough about the substantive merits of the appeal to render it unnecessary to be further satisfied. What neither the court nor the defendant's solicitor appreciated was that Mitchell was of indeed central relevance not as a decision in support of the application but as one which was strongly adverse to it.

MITCHELL

19. In Mitchell the court took a deliberately "tougher and less forgiving approach" to the question of how strictly the courts should now enforce compliance with rules, practice directions and court orders in the light of the Jackson reforms. It observed at paragraph 60:

"60 In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past."

20. I remind myself that CPR 52.3(5) does not provide for a specific sanction to follow in the event that an application to renew is served out of time. Strictly speaking, therefore, it may be concluded that CPR 3.9 relating to the granting of relief from sanctions ought not to apply. I am satisfied, however, that it is appropriate for the court to apply the same approach to such an application as falls to be examined in this case as did the Court of Appeal to the breach relating to costs budgeting in Mitchell.
21. I take this approach because:

i) The wording of CPR 52.3(5) is unequivocally expressed in mandatory terms;

ii) The time limit of 7 days is deliberately short thereby emphasising the need for very prompt action; and

iii) There is a clear and compelling priority for there to be an end to litigation and for the parties to be in a position to know when that end has been reached.

22. Accordingly, I consider that under CPR 52.3(5), a party in default seeking an extension of the time limit for a renewed application for permission to appeal will have to satisfy the same tests as were applied to the default in Mitchell:

"40 We hope that it may be useful to give some guidance as to how the new approach should be applied in practice. It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly. The principle "de minimis non curat lex" (the law is not concerned with trivial things) applies here as it applies in most areas of the law. Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms. We acknowledge that even the question of whether a default is insignificant may give rise to dispute and therefore to contested applications. But that possibility cannot be entirely excluded from any regime which does not impose rigid rules from which no departure, however minor, is permitted.

41 If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue. We should add that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief from sanction made after the event?"

23. The default in this case was not trivial. The defendant delayed for a period of about three times in excess of that permitted by the rules.
24. There was no good reason for the delay. The reasons set out in the defendant's application were:

"It is respectfully submitted that the time allowance of seven days is not a sufficient timescale for the Appellant to consider the impact of the decision, advise the client of the decision, advise as to the merits of possible actions and to make the application.

E-Surv Limited are not legally trained and cannot be considered to be a legally sophisticated client. They are a firm of Chartered Surveyors and cannot be expected to be able to consider the ramifications of a refusal to allow an appeal.

When liaising with E-Surv it is necessary to speak initially with the case handler, in this case a Lisa Jarrett, who in turn liaises with the Finance Director of E-Surv Limited. Instructions are then fed back "down" the chain to Just Costs. Once instructions are received to proceed, an advice is provided to E-Surv who in turn consider the same and advise accordingly.

Instructions to proceed with an Oral Hearing were received outside of the seven day time limit."

25. In the light of the stringent approach taken by the Court of Appeal in Mitchell as to what may or may not constitute a good reason it is plain, without the need for further elaboration, that the reasons relied upon by the defendant whether taken individually or together came nowhere near to satisfying the test. They were thoroughly bad reasons.
26. For the avoidance of doubt, I would say in any event that the default in this case was so blatant and avoidable that I would have exercised my discretion in the same way even applying the less robust approach which would have been appropriate under the old regime.
27. If Blair J. had been directed specifically to the period of delay after the notice had been received and had read the case of Mitchell then I am in no doubt that, regardless of the prospective merits of an appeal, he would have refused an extension of time.

CONCLUSION

28. It must follow that the time for appealing in this case ought never to have been extended and I accede to the claimant's application to set aside the order of Blair J. and order that the defendant's appeal is out of time and that permission to extend such time is refused.