Mullard v Sharma & Anor

Where an appellant fails to set down an appeal within the time required by the applicable rules, the Court of Appeal may strike out the notice of appeal. A prolonged and unexplained failure to progress the appeal, particularly after an earlier extension of time, can justify bringing the appeal to an end finally. The court may deal with the application where the appellant has received notice of it but does not attend, provided the court is satisfied that notice was given.

The claimant brought county court proceedings concerning a freehold dwelling occupied by the defendants. The proceedings were compromised by a Tomlin Order requiring the defendants to redeem or transfer the mortgage and providing for a subsequent transfer of the property to them.

After the defendants failed to comply, the stay was lifted. The defendants appealed against an order refusing a further extension of time and obtained permission to appeal from the Court of Appeal on 1 December 1998, together with a stay on terms. They then failed to set down the appeal. Although the Court of Appeal granted an extension in June 1999, the appeal remained unlisted for more than two further years. The property was subsequently sold by the mortgagee. The issue was whether the defendants’ notice of appeal should be struck out for failure to set down the appeal within the prescribed time.

1. Application granted. The defendants’ notice of appeal was struck out, finally bringing the appeal to an end. Costs were awarded to the claimant on an indemnity basis, subject to detailed assessment if not agreed, and a section 11 order was made against the Legal Services Commission.
2. The defendants had failed to set down their appeal within the time required by the applicable rules. They had also failed to set it down more than two years after an order granting an extension of time. The material before the court contained no reason capable of explaining that delay.
3. The history was material. The defendants had already received permission to appeal, a stay of execution on terms, and an extension of time supported by their former solicitor’s acceptance of responsibility for the earlier default. Their continuing failure to progress the appeal, together with their non-attendance, meant that no useful alternative course was apparent.
4. The court was entitled to proceed in the defendants’ absence. They had been notified of the hearing, had been called outside court without response, and the court accepted that attempts had been made to serve the application personally. It was clear that they had received notice of the proceedings.

• Court of Appeal (Civil Division): On 15 October 2001, the court granted the claimant’s application and struck out the defendants’ notice of appeal.
• Court of Appeal (Civil Division): On 1 December 1998, leave to appeal was granted against the order dated 13 August 1998, with a stay of execution on terms. On 28 June 1999, an extension of time to set down the appeal was granted.
• Bromley County Court: District Judge Brett lifted the stay after non-compliance with the Tomlin Order and dismissed a further extension application on 13 August 1998. Her Honour Judge Hallon dismissed the defendants’ appeal and refused permission to appeal out of time on 30 September 1998.