Dial Partners LLP v Eastern Airways International Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 29 July 2019 |
| Neutral Citation | [2019] EWHC 2060 (QB) |
| Docket Number | Case No: QA-2019-000119 |
| Court | Queen's Bench Division |
| Date | 29 July 2019 |
[2019] EWHC 2060 (QB)
IN THE HIGH COURT OF JUSTICE
ON APPEAL FROM THE DECISION OF
MASTER JAMES IN THE SENIOR COURT
COSTS OFFICE – SCCO REF: JJ1704076
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Freedman
Case No: QA-2019-000119
Claim No: CL-2015-000421
Mr Dan Stacey (instructed by Candey) for the Claimants
The Defendants did not attend and were not represented
Hearing dates: 9 July 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is a renewed oral application for permission to appeal against an order made by Master James on 28 February 2018. The application for permission to appeal was on the basis that the appeal was made in time and thus there was no application for an extension of time. The date of the decision was said to be 17 April 2019, and the Appellant's Notice is dated 7 May 2019. On 9 July 2019, I heard Mr Stacey of Counsel and gave an ex tempore judgment. The essence of that judgment was to find that an appeal against the order to withhold profit costs of the Claimants had a real prospect of success despite the views of the Master and by Nicol J, and that this was a case where it was appropriate to give permission to appeal in respect of that part of the order of the Master. However, I wished to see the transcript before an order was made.
Overnight, I had a concern about whether in fact the appeal was brought in time. On 10 July 2019, I directed that no order should be entered and I sought a further written argument as follows:
“The Appellant's notice at section 2 states that it was brought in time, and that the date of the decision is 17 April 2019. Please explain why it is said that the application was brought in time. In particular, please explain why time did not start to run from 28 February 2018 when Master James decided not to award the profit costs. In any event, what happened on 17 April 2019. I note that the order is dated 24 April 2019. If the matter is out of time, then it would be premature to grant permission. It would first be necessary to consider an application for an extension of time. Before considering that, I need to know whether the Appellant's Notice was in time.”
I directed that a written argument should be provided by not later than 4:00pm on 11 July 2019.
On 11 July 2019, Mr Stacey provided a document headed “ Appellant's note addressing point on appeal timing raised by the Court on 10 th July 2019” that accompanied an email from Mr Nabarro of Candey Solicitors to Mr Stacey setting out the history of the matter.
I shall first deal with the matters relating to whether the appeal was brought in time, and if so, whether there should be an extension. I shall thereafter set out the transcript of what I said in respect of the application for permission to appeal at the time when the matter was proceeding on the basis that the appeal was in time and that no extension was necessary.
The relevant rules
Mr Stacey has referred to CPR 52.12 under the heading:
“ Appellants notice
(1) Where the appellant seeks permission from the appeal court, it must be requested in the appellant's notice.
(2) The appellant must file the appellant's notice at the appeal court within—
(a) such period as may be directed by the lower court (which may be longer or shorter than the period referred to in sub-paragraph (b)); or
(b) where the court makes no such direction, and subject to the specific provision about time limits in rules 52.8 to 52.11 and Practice Direction 52D, 21 days after the date of the decision of the lower court which the appellant wishes to appeal.”
However, it is also necessary to refer to the following, namely
“ CPR 52.(3)(2) which provides:
“an application for permission to appeal may be made—
(a) to the lower court at the hearing at which the decision to be appealed was made; or
(b) The appeal court in an appeal notice.”
I must also consider PD 52.B about which I have not been addressed. This contains additional provisions relating to CPR 52.12 about extending time in which to appeal. The relevant paragraphs are as follows:
“3.1 A party may apply to the lower court for an extension of time in which to follow the appellant's notice. The application must be made at the same time as the appellant applies to the lower court for permission to appeal.
3.2 Where the time for filing an appellant's notice has expired the appellant must include an application for an extension of time within the appellant's notice (form N161 or, in respect of the small claim form N164) stating the reason for the delay and steps taken prior to making the application.
3.3 The court may make an order granting or refusing an extension of time and may do so with or without a hearing…”
In the recent case of McDonald v Rose & Ors [2019] EWCA Civ 4 the Court of Appeal reaffirmed that “the date of the decision of the lower court which the appellant wishes appeal” for the purpose of CPR 52.12(2)(b) is the date that the decision is formally announced in court and not the date that the formal order recording the decision is issued: see Sayers v Clarke Walker [2002] EWCA Civ 645; [2002] IWLR 3095. Where there is a formal hand down without dealing with the question of permission to appeal, it is necessary for the Court to ensure that the hand-down hearing is not formally concluded, so that the Court retains jurisdiction under CPR 52.3(2)(a). Accordingly, if the application for permission to appeal is not made at the decision hearing itself, it is necessary to ask for the hearing to be formally adjourned in order to give more time to do so. If no permission application is made at the original hearing, and there has been no adjournment, then the hearing at which the decision was made is concluded and the lower court is no longer ceasing the matter and cannot consider any retrospective application for permission to appeal. In McDonald v Rose at (21)(5), the Court stated
“ Whenever a party seeks an adjournment of the decision hearing…they should also seek an extension of time for filing the appellant's notice, otherwise they risk running out of time before the permission decision is made.”
In the instant case, the initial decision by Master James depriving the Claimants' profit costs was delivered orally on 28 February 2018, and permission to appeal was sought immediately upon the judgment being delivered on that day. Thus, contrary to the Practice Direction, no application for an extension was made at the same time as the application for permission to appeal.
On 13 March 2018, Candey, Solicitors for the Claimants (a) asked the Master to reconsider her decision and (b) asked for confirmation that the 21-day period for appealing pursuant to CPR 52.12 be extended to 28 March 2018 to afford the Defendant's time to respond to their suggestion. The Master reconsidered her decision.
On 14 March 2018, the Master agreed “ this is an entirely sensible suggestion and I am happy to do that. The parties are obviously going to need something in writing from me and it will include a reference to CPR 52.12 when it comes out.”
On 16 March 2018, the Master said “Given that I am content for the proposed Appellants' time for Appealing, to depend upon the date on which they receive my decision, I see no problem with letting this go into the early part of next week.” In fact, following other exchanges, it was not until 18 December 2018 that the Master sent a detailed email decision refusing to change her decision of 28 February 2018. On that day, Candey sought a 14-day extension of time to file the Claimants' Notice under CPR 52.12 (2)(a). On 20 December 2018, the Master agreed.
On 20 December 2018, Candey asked for confirmation of the 21-day period pursuant to CPR 52.12 would not start running until “a final order has been made/agreed.” The Master responded “Yes, providing that it is agreed no later than end January 2019.”
On the same day Eversheds, Solicitors for the Defendants, wrote “…until such time as you are in a position to make a decision on the question of my client's costs incurred from 13 March onwards, the parties will not be in a position to perfect an order.”
Costs submissions were exchanged on 21 and 23 January 2019, but no decision was made by the Master until 10 April 2019 when Eversheds chased the Master in the following terms:
“The parties however await your determination of the quantum of the additional costs in order that a final order can be drawn. The deadline for appeal runs 21 days from the sealing of the order and the Claimant has reserved its right in that regard. As such, our client's anxious to try and draw a line under this matter as soon as possible.”
On 17 April 2019, the Master handed down her decision in respect of the costs of the post-judgment dispute, awarding them to the Defendants.
The Appellants' Notice was lodged on 7 May 2019, 20 days after the Master's order of 17 April 2019 and 13 days after the terms of the Order were agreed by the parties which happened on 24 April 2019.
In the submission of the claimants, time for appealing had not expired by the time that the Appellants' Notice was filed and the appeal is in time. He relies upon the extension by the Order or direction of the Master made by email of 16 March 2018 until the date that the claimants “received my decision”. The decision was then received on 18 December 2018, and on 20 December 2018, a 21-day extension was provided. This was...
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