Barclays Bank Plc v Rowley & Anor

A party seeking an extension of time to appeal must give a good reason for non-compliance. The 14-day period for appealing promotes finality and enables a successful party to know promptly whether its order will be challenged. A six-month delay requires a compelling explanation.

Procedural confusion will not ordinarily justify an extension where the party was told the correct appellate route but deliberately pursued a different route. An application to set aside a judgment entered after non-attendance does not preserve a separate right of appeal. A party wishing to pursue both remedies should seek an extension while the set-aside application proceeds.

Barclays Bank obtained judgment, a money order and possession of two mortgaged properties after the Rowleys did not attend their listed trial in Birmingham County Court. Judge MacDuff proceeded in their absence after finding a prolonged history of delaying applications and appeals. The Rowleys later sought to set aside the judgment under CPR 39.3. Judge McKenna dismissed that application in Dudley County Court.

The Rowleys then made a renewed application to the Court of Appeal for permission to appeal Judge MacDuff’s order, more than six months after the appeal deadline. The central issue was whether time should be extended for an appeal against the decision to proceed with the trial in their absence.

1. Applications dismissed. Lord Justice Chadwick refused an extension of time for an appellant’s notice against Judge MacDuff’s order. The renewed application for permission to appeal therefore also failed.

2. The 14-day period under CPR 52.4 serves the policy of finality. A party successful below is entitled to know promptly whether its order will be challenged. An extension of about six months required a good reason, particularly where the proposed appeal concerned a procedural decision made at trial.

3. The Rowleys had been told on 25 April 2001 that any challenge to Judge MacDuff’s order should be made to the Court of Appeal. They instead chose to pursue an application under CPR 39.3. Although some subsequent delay may have resulted from the county court mislaying documents, they gave no adequate explanation for choosing that course or for failing to seek an extension while it proceeded. The court concluded that they had deliberately sought the benefit of further delay.

4. CPR 39.3 provides a distinct route for a party absent from trial to seek to set aside the resulting judgment. The Rowleys’ original application had relied on alleged procedural irregularity and did not address whether their defence had a reasonable prospect of success. The court did not determine the correctness of Judge McKenna’s later dismissal of the CPR 39.3 application, nor whether Judge MacDuff had been right to proceed in their absence. Those matters were not before it.

5. The order did not affect any properly pursued challenge to Judge McKenna’s order in the appropriate forum.

• Court of Appeal (Civil Division): In [2001] EWCA Civ 2040, the renewed application for an extension of time and permission to appeal Judge MacDuff’s order was dismissed.
• Dudley County Court: Judge McKenna dismissed the Rowleys’ CPR 39.3 application to set aside the judgment on 17 October 2001. The status of an asserted further application to the High Court was not before the Court of Appeal.
• Birmingham County Court: On 5 April 2001, Judge MacDuff proceeded in the Rowleys’ absence, gave the bank judgment for £73,183, ordered possession within 28 days, and dismissed the counterclaim.