Gary Joseph McDonald v Michelle Rose

Hearing date: 1 November 2018

Approved Judgment

Lord Justice Underhill (giving the judgment of the Court):

INTRODUCTION

This application for permission to appeal was listed for hearing because the appeal was filed out of time and the application for an extension raised procedural issues of some general importance on which it was felt that the guidance of the Court was necessary. This judgment, to which all members of the Court have contributed, deals first with the application for an extension and then with the substantive permission application. Both parties were represented by counsel, who provided helpful written and oral submissions on both aspects.

At this stage all that we need say about the underlying claims is that they arise out of the deaths of Marlene McDonald on 10 August 2010, aged 72, and of her husband Liam on 3 November 2013, aged 74. Their surviving children are in dispute as to the proper distribution of their parents' estates (including the shareholding held by the parents in the Eighth and Ninth Respondents, W & M McDonald (Pencarn Farms) Ltd and Octavian Development & Construction Ltd (“the Companies”)). Gary McDonald (“the applicant”) claims the bulk of the estates, on the basis of assurances which he says were made to him by his parents. That claim is resisted by his five siblings (“the defendants”). The trial was heard at the Business and Property Court in Cardiff in February 2018 by HHJ Jarman QC. It involved statements from 47 witnesses of fact in total, 23 of whom were cross-examined (including the applicant and his siblings). The judge decided the dispute in favour of the defendants.

A. THE APPLICATION FOR AN EXTENSION

THE PROCEDURAL HISTORY

The judge handed down his written judgment on 9 March 2018 ( [2018] EWHC 445 (Ch)). In accordance with the usual practice, on 7 March a draft judgment was circulated to the parties in advance of the hand-down. The parties were notified that the judgment would be handed down on 9 March and that attendance was not required.

On 8 March the applicant's solicitors wrote to the court to say that he was considering seeking permission to appeal. They asked the judge, when the reserved judgment was handed down the following day, “formally to adjourn the hearing to enable [the applicant] to apply for permission to appeal”. They did not seek any extension of the default 21-day time limit provided for in the Rules for filing an Appellant's Notice with the Court of Appeal (see para. 10 below).

On 9 March, having handed down the judgment in the absence of the parties, the judge, by an additional paragraph in his judgment, ordered written submissions on consequential matters “within 14 days of the handing down of this judgment [i.e. by 23 March]”. By email on 13 March the court notified the parties that the application for permission to appeal had been adjourned for 14 days from 9 March and was to be dealt with by way of written submissions.

On 23 March the parties filed their written submissions in accordance with the judge's order. The application for permission to appeal was only one of a number of consequential matters that the applicant addressed. In response, not only did the defendants oppose that application but they also, at para. 21 of their submissions, opposed any extension of time for the filing of an appellant's notice beyond 30 March (i.e. 21 days after the date of the hand-down on 9 March). Despite this unequivocal warning, it appears that the claimant's solicitors were not alerted to the risk that, without an extension, the 21 days expired on 30 March.

Having considered the written submissions, on 18 April the judge (amongst other things) refused permission to appeal, and an order was made to that effect.

On 9 May the applicant filed his appellant's notice. That was the last possible day if the 21 days commenced on 18 April, but it was out of time if the 21 days had started on 9 March, a point made by the defendants' solicitors in their letter of 17 May. On 21 May, the applicant sought to extend the 21-day period if that was necessary, although his primary position at that stage remained that the 21 days did not begin to run until 18 April.

THE RELEVANT RULES AND PRACTICE DIRECTIONS

CPR 52.3 (2) provides as follows:

“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 [emphasis supplied]; or

(b) to the appeal court in an appeal notice.”

That provision is essentially reproduced by paragraph 4.1 (a) of PD 52A, but with the addition at the end of (a) of the parenthesis “(in which case the lower court may adjourn the hearing to give a party an opportunity to apply for permission to appeal)”.

CPR 52.12 provides (so far as relevant):

“(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.

(3) …

(4) …”

Thus the default time limit for filing a notice of appeal is 21 days from the date of the decision in question – see paragraph (2) (b) – but that time can be extended (or reduced) by the lower court – see paragraph (2) (a).

PD 52B glosses the provisions of 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 file an 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 a small claim, form N164) stating the reason for the delay and the 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. …”

THE AUTHORITIES

There are a number of authorities dealing with when the 21-day period in CPR 52.12 (2) (b) starts to run and the procedure that the parties must adopt in respect of any application to the lower court for permission to appeal.

The starting-point is Sayers v Clarke Walker [2002] EWCA Civ 645, [2002] 1 WLR 3095. This establishes that “the date of the decision of the lower court which the appellant wishes to appeal” for the purpose of CPR 52.12 (2) (b) is the date that the decision is formally announced in court. Thus the 21 days within which an appeal must (in the absence of an extension) be filed run from that date and not the date – which may be days, or sometimes even weeks, later – that the formal order recording the decision is issued. That is uncontroversial and should be known to any practitioner, though experience shows that it is often overlooked.

In Owusu v Jackson [2002] EWCA Civ 877, [2003] PDQRP 13, Brooke LJ made it clear how the rule applies where the judge reserves his or her judgment and, in accordance with the modern practice, formally hands it down (typically after pre-circulating it in draft) at a later hearing which the parties are excused from attending. He said:

“25. … CPR 52.4(2) [being the predecessor of the current CPR 52.12 (2)] prescribes that where the lower court makes no relevant order, the appellant must file the appellant's notice within 14 days after the date of the decision of the lower court that the appellant wishes to appeal. This means the date when the judge makes his decision, and not the date when the order reflecting his decision is drawn up. See Sayers v Clarke Walker … .

26. The judge was sitting in public, and it was his duty to give judgment and make his judgment available to the parties in public. Time for appealing will then run from the time he communicates his decision to the parties (other than in draft form, following the modern procedure discussed in Prudential Assurance Co Ltd v McBains Cooper (A Firm) [2000] 1 WLR 2000). If he sends his written judgment to the parties in draft, and they are able to agree the consequential orders, he may be able to excuse their attendance when he delivers the judgment formally in court, thereby making it available to the public and the media (if interested), but he cannot dispense completely with the formality of handing down his judgment in open court. Time for appealing will then start to run.”

(The reference at para. 25 to 14 days of course...