McDonald v Rose & Ors  EWCA Civ 4
15 January 2019
When does time start to run for making an application for permission to appeal? Does the answer change, depending on whether the application is made to the lower or appellate court?
This was an application for an extension of time for filing an appellant’s notice in an appeal court. Unusually, the Court of Appeal listed the case for hearing because it raised procedural issues described as a ‘trap for the unwary’ on which the Court felt it was necessary to issue guidance.
CPR 52.3(2) provides that applications 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) to the appeal court in an appeal notice.
Where an application is made to the appeal court, CPR 52.12(2) prescribes the relevant time limits: (a) such period as may be directed by the lower court…; or
(b) where the court makes no such direction…21 days after the date of the decision of the lower court which the appellant wishes to appeal.
Extensions of time may be granted in either case. For applications to the lower court, PD 52A paragraph 4.1(a) holds that a party may request the lower court to adjourn the hearing so as to give them further time in which to consider whether an application to appeal will be pursued.
For applications to the appeal court, PD 52B paragraph 3.1 holds that 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.
The Correct Procedure
The Court of Appeal held:
- The uncontroversial starting-point is that time starts to run on the date that the decision is formally announced or handed down in open court (Sayers v Clarke Walker  EWCA Civ 645). This remains so, even if the judge reserves judgment and, in line with the modern practice, circulates a draft before formally handing it down at a subsequent public hearing (Owusu v Jackson  EWCA Civ 877), or the judge delivers judgment with reasons to follow. The Court of Appeal referred to this as the ‘decision hearing.’
- Applications to the lower court should normally be made at the decision hearing. Where, however, the parties are excused from attending such public hearing, having received a draft copy informally in advance, the party wishing to apply for permission should do so in writing in the interim period between the date when the draft judgment is circulated and the public decision hearing when the judgment is formally handed down. The application is then treated as having been made ‘at’ the later hearing, notwithstanding that the parties have been excused from attending it.
- If a party wishes to request further time to consider making an application for permission to appeal, the decision hearing must be formally adjourned so that the subsequent application is still made ‘at’ the hearing at which the decision was made. In most cases (i) there would not normally be any need for further time, as there would have been sufficient time to consider grounds of appeal once the draft judgment had been informally circulated; and (ii) the application for permission would normally be dealt with on the papers, but it was essential that the court retained jurisdiction by ensuring the hearing was not formally concluded.
- If no application is made at the decision hearing and it is not adjourned, the lower court is no longer seized of the matter and cannot consider retrospective applications to appeal (Lisle-Mainwaring v Associated Newspapers Ltd  EWCA Civ 1470).
- Adjournment of the decision hearing so that a party can consider grounds of appeal does not, however, automatically extend the time to file an appellant’s notice in the appeal court (R (Hysaj) v SSHD  EWCA Civ 1633). The time limit for doing so remains 21 days pursuant to CPR 52.12(2)(b), unless the party wishing to appeal applies to the lower court for an extension of time under CPR 52.12(2)(a).
- If such extension of time is granted, it will normally be 21 days. However, the judge should consider whether such a period is necessary, as it may be reasonable to expect the party to be able to file their notice more promptly once whey know whether permission has been granted.
This case serves as a useful reminder that applications to appeal to an appeal court are made in respect of the substantive judgment of the lower court, not any order of the lower court refusing permission to appeal.
Therefore, (i) if a party seeks an adjournment of a hearing at a lower court, following the hand down of judgment, to consider making an application for permission to appeal the decision handed down; then (ii) an application should also be made to extend the time for filing an appellants’ notice at the appeal court.
Failure to file an appellants’ notice within the prescribed 21 days at the appeal court in the absence of an extension will amount to default requiring an application for relief from sanctions. In respect of such applications, the conclusion adopted by the Court in this case, where delay was inadvertent, is a stark warning:
“Ignorance of the rules will rarely, if ever, provide a good reason for failing to comply with them, especially where professionals are involved. I do not think that there was a good reason for the delay.”