Cooke (t/a D J Cooke & Co) v McManus

An extension of time for appealing is discretionary. Substantial delay may justify refusal where allowing a late appeal would unfairly give one party a further opportunity after a related timely appeal has already been dealt with. A satisfactory explanation for delay does not overcome the absence of a real prospect of success. Permission should be refused where the proposed grounds mainly challenge factual findings that the appellate court could not realistically reverse. In a building dispute involving numerous low-value items, a trial judge may assess loss using a broad-brush approach where detailed item-by-item analysis would be disproportionate.

The claimant, an architect and surveyor, sued for professional fees arising from building works. The defendant denied liability and counterclaimed damages for alleged contractual breaches, including failure to issue a certificate of non-completion and failure to notify defects. His Honour Judge Hedley awarded the claimant part of his fees and allowed the counterclaim in a comparatively small sum.

The defendant, who had been a litigant in person at trial and had subsequently become ill, applied for permission to appeal and an extension of time. The application was made more than two months late. The central issues were whether time should be extended and whether the proposed appeal had a real prospect of success.

1. Disposition. Lord Justice Longmore dismissed the application for an extension of time for appealing.
2. The court considered the substantial delay and the procedural unfairness that could result from allowing a late appeal after the claimant’s own timely application for permission to appeal had already been determined. Parties with related claims and cross-claims should ordinarily have their applications considered together.
3. The defendant’s status as a litigant in person and her illness after trial provided an explanation for the delay, but those matters did not justify an extension where the proposed appeal had no real prospect of success. Most of the 18 grounds challenged factual findings which had no realistic prospect of being reversed on appeal.
4. As to the alleged failure to issue a certificate of non-completion, the relevant question was the loss caused by the breach. The claimant had to be placed in the position she would have occupied had the contractual duty been performed. The judge was entitled to find that, had the certificate been issued, an extension of time would probably have been sought and granted together with additional costs, so that no recoverable loss resulted from the breach.
5. As to defects which should have been notified, the trial judge was entitled to adopt a broad-brush assessment. The schedules contained numerous modest items and included matters outside the particular breach under consideration. They did not establish a minimum recoverable figure, and detailed item-by-item assessment would have been wholly disproportionate.
6. There was therefore no real prospect that the proposed grounds would succeed. The formal order was that the application for an extension of time for appealing be dismissed.

• Court of Appeal (Civil Division): dismissed the defendant’s application for an extension of time for appealing. The court held that the proposed appeal had no real prospect of success and that the delay, considered in its procedural context, did not warrant an extension.
• High Court of Justice, Queen’s Bench Division: His Honour Judge Hedley awarded the claimant part of his fees and allowed the defendant’s contractual counterclaim in a comparatively small sum.