Courtney v Murphy

Permission to appeal out of time, particularly on a second-tier appeal, requires a compelling explanation for the delay and a proper assessment of prejudice and finality. A later clarification of the law may explain why an appeal would now have merit, but it does not remove the need to apply promptly once the change is known. The court will weigh the applicant’s loss against the strong presumption that a respondent who has heard nothing for many months has treated the litigation as concluded. Article 6 does not prevent procedural rules designed to ensure timely litigation, protect defendants from prejudice and secure finality.

The applicant was injured in a road traffic accident for which liability had been admitted, but his claim for damages was automatically struck out under CCR O.17,r.11 after the time for applying for a trial date expired. The Deputy District Judge and the county court judge rejected arguments that an earlier stay displaced the automatic directions and that an application to extend time amounted to an application for a trial date.

Later Court of Appeal decisions clarified the law in the applicant’s favour. He nevertheless waited more than six years before seeking permission to appeal and an extension of time. The central issue was whether that delay, the likely prejudice to the respondent and the need for finality could be overcome.

1. Application refused. The court refused permission to appeal and the extension of time. Although the proposed appeal appeared likely to succeed on the substantive points in light of later Court of Appeal authority, the delay of more than six and a half years was decisive.
2. The later authorities established that a stay could override the automatic directions and strike-out provisions under CCR O.17,r.11. They also established that an application made in time to extend the period for applying for a trial date could operate as an implied application to fix a trial date, even if heard after the automatic strike-out date.
3. The principles stated in Greig Middleton v Denderowicz [1997] 4 All ER 181 governed the application for an extension of time. Inexcusable delay after the relevant change in law strongly militated against relief. There was also a strong presumption that the respondent or insurers had treated the litigation as concluded where no notice of an intention to continue had been given for many months.
4. The applicant’s injury, the admission of liability, the fact that quantum remained in issue and the possibility that the respondent was insured did not outweigh the probable prejudice of reviving a claim many years after the accident. The original litigation had itself been pursued dilatorily, including delay over medical examination and authority for medical records.
5. Article 6 of the European Convention on Human Rights did not assist. The right to a fair trial permitted the courts to regulate litigation so that it was pursued timeously, defendants were not prejudiced by delay and litigation achieved finality.

Order: Applications refused.

• Court of Appeal (Civil Division): The application for permission to appeal from the county court judgment and for an extension of time was refused.
• Northampton County Court: His Honour Judge Wilson dismissed the applicant’s appeal and refused reinstatement of the automatically struck-out claim.
• Deputy District Judge: Deputy District Judge Barnby rejected the arguments concerning the stay and the application to extend time, and considered that reinstatement should not be granted.