Microsoft and Others v JJH Enterprises Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Stuart-Smith,Lord Justice Birss |
| Judgment Date | 11 November 2022 |
| Neutral Citation | [2022] EWCA Civ 1509 |
| Docket Number | Case No: CA-2022-001102-A |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1509
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Stuart-Smith
and
Lord Justice Birss
Case No: CA-2022-001102-A
IN THE COURT OF APPEAL (CIVIL DIVISION)
REVIEW UNDER CPR 52.24 (5)
Royal Courts of Justice
Strand, London, WC2A 2LL
No appearance from the parties
Hearing date: 11 November 2022
Approved Judgment
The short but important procedural point raised by this application is whether, where an Appellant's Notice is filed with the Court of Appeal electronically in accordance with “Electronic Working Pilot Scheme” introduced by Practice Direction 51O (“PD 51O”), it may be filed at any time up to midnight on the last day of the permitted period or must, either generally or at least in the case of an appeal from the Commercial Court, be filed by 4.30 p.m.
The issue arises in the context of proceedings brought in the Commercial Court by the Claimant, JJH Enterprises Ltd, trading as ValueLicensing, (“VL”) against three Defendants to whom I can refer compendiously as “Microsoft”. VL is represented by Charles Fussell & Co LLP (“CF”) and Microsoft by CMS Cameron McKenna Nabarro Olswang LLP (“CMS”). The procedural history can be sufficiently summarised as follows:
(1) On 14 April 2022 Picken J dismissed applications by Microsoft to strike out VL's claim against one of the Defendants, or grant summary judgment, and to stay its claim against the others on grounds of forum non conveniens. I should quote para. 3 of his order, which reads:
“The time for filing any appellant's notice shall be extended under CPR 52.12 (2) (a) until the date 21 days after the determination of any application for permission to appeal made to this court in accordance with paragraph 2, or, if no such application is made, 21 days after the deadline specified for that purpose in paragraph 2 (2).”
I need not elucidate the references to paragraph 2 of the order: what matters for our purposes is simply that the Judge extended time for filing an Appellant's Notice and that he did not specify a time on the final day by which it should be filed.
(2) On 13 May 2022 Picken J refused permission to appeal. It is common ground that, accordingly, Microsoft's time for filing an Appellant's Notice expired on 6 June.
(3) At 4.52 p.m. on 6 June 2022 Microsoft filed an Appellant's Notice in this Court electronically in accordance with the procedure prescribed by PD 51O.
(4) The following day CF informed CMS that they regarded the Appellant's Notice as having been filed out of time because it was filed after 4.30 p.m. and asked whether they would be applying for an extension.
(5) In response CMS on 9 June 2022 made an application, supported by a witness statement from the responsible partner, Kenneth Henderson, seeking a declaration that the Appellant's Notice had been filed in time but asking for an extension if that were wrong.
(6) On 29 June 2022 Master Bancroft-Rimmer made an order on Microsoft's application declaring that the Appellant's Notice had been filed in time. Her reasons were incorporated on the face of the order. In essence she held that the effect of paragraph 2.1 of PD 51O was that documents could be filed at any time up to midnight.
(7) By letter dated 5 July 2022 CF requested, pursuant to CPR 52.24 (5), that the Master's order be reviewed by a Lord or Lady Justice of Appeal: the letter incorporated substantive submissions challenging the Master's conclusion and reasoning.
(8) The Master was obliged to grant that request, and by e-mail dated 7 July 2022 she asked for Microsoft's submissions in response to those made on behalf of VL.
(9) In the meantime, on the basis of the Master's initial ruling, Microsoft's application for permission to appeal had been referred to Males LJ. By order dated 8 July he refused permission.
(10) On 8 July 2022 CMS wrote to the Court saying that the review of the Master's order had become “otiose” as a result of Males LJ's order, and asking whether it would proceed. CF wrote in response maintaining their request for a review, both on the formal basis that Males LJ's order was invalid if the Appellant's Notice had not been filed in time and on the more substantial basis that the question of when time expired was of importance to practitioners generally.
(11) On 13 July 2022 Master Bancroft-Rimmer, who was aware of the wider significance of the point, confirmed that the review would proceed. CF indicated that they did not wish to add to the submissions already filed. CMS filed short submissions on 14 July principally relying on Mr Henderson's earlier witness statement.
(12) VL's request for a review was then passed to me. On 2 August 2022 I gave directions for an oral hearing. I directed that the submissions already filed could stand as the parties' skeleton arguments.
That is how the matter comes before us. Once the members of the Court had had the opportunity to read the submissions in full, together with some subsequent inter-solicitor correspondence questioning the need for oral submissions, we notified the parties that it was not in our view necessary for them to attend, and they have not done so. We have reached our decision on the basis of the earlier written submissions to which I have already referred. However, it remains appropriate for us to give our decision in the context of an oral hearing so that it can readily be reported.
I will first set out the provisions of the directly relevant Rules and Practice Directions.
Part II of Practice Direction 52C prescribes how to start an appeal to the Court of Appeal. Paragraph 3 (2) provides that an Appellant's Notice “must be filed in the Civil Appeals Office Registry”, specifying the room in the Royal Courts of Justice (“the RCJ”) where the Registry is situated.
Paragraph 2.1 (a) of Practice Direction 2A provides that court offices for the Senior Courts (which include the Civil Appeals Office Registry) shall be open on weekdays between 10 a.m. and 4.30 p.m.: I will refer to those as “office hours”.
“Filing” is defined in rule 2.3 (1) of the Rules themselves as “delivering a document or information, by post or otherwise, to the court office”. The Court of Appeal in Van Aken v Camden London Borough Council [2002] EWCA 1724, [2003] 1 WLR 684, held that a document could be filed in a court office, within the meaning of rule 2.3 (1), by the simple act of physical delivery at the office and did not involve any step required to be taken by office staff, with the result that filing could take place outside office hours. I should note, however, that in that case the relevant court was a County Court, which had a post-box through which a document could be delivered after the...
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