Foenander v Bond Lewis & Co

A refusal to extend the time for appealing is distinct from a refusal of permission to appeal. Although Access to Justice Act 1999 section 54(4) prevents a further appeal against a decision refusing permission, it does not prevent an appeal, with permission, against a discretionary refusal to extend time.

Such an appeal is not a second appeal where the extension-of-time question decided by the judge differs from the substantive matter decided below. An application to vary the time for filing an appeal notice must be made to the court which would hear the appeal.

The claimant's professional negligence claim against a firm of solicitors was struck out by a deputy master. Astill J subsequently refused to extend the claimant's time for appealing against that order. The claimant did not then seek permission to appeal within the period prescribed under the former appeals regime.

Following the introduction of the new CPR appeals regime, the claimant pursued several overlapping challenges. Owen J refused both permission to appeal against a costs order and an extension of time relating to the earlier orders. The claimant then lodged a notice of appeal in the Court of Appeal.

The central preliminary issue was whether the Court of Appeal had jurisdiction to entertain a challenge to Astill J's refusal to extend time, given that section 54(4) of the Access to Justice Act 1999 prohibits an appeal from a decision granting or refusing permission to appeal.

1. Unanimously, the Court of Appeal held that it had jurisdiction to entertain the proposed appeal against Astill J's refusal to extend time, provided that permission to appeal was granted. Brooke LJ delivered the judgment, with which Sedley and Dyson LJJ agreed.

2. A refusal to extend the time for appealing is conceptually distinct from a refusal of permission to appeal. The former is an exercise of procedural discretion. The latter determines whether a proposed appeal may proceed. The distinction recognised in Rickards v Rickards [1990] Fam 194 survived the introduction of the CPR appeals regime.

3. Section 54(4) of the Access to Justice Act 1999 prevents an appeal against a decision granting or refusing permission to appeal. It is silent about a decision refusing to extend time. Subject to any contrary statutory provision and to obtaining permission, section 16(1) of the Supreme Court Act 1981 therefore conferred jurisdiction to hear an appeal from Astill J's order.

4. The rule associated with Lane v Esdaile [1891] AC 210, and reaffirmed in R v Secretary of State for Trade and Industry, ex p Eastaway [2000] 1 WLR 2222, prevents repeated litigation of permission where the relevant courts have concluded that an appeal lacks a real prospect of success and there is no other compelling reason to hear it. That principle did not govern Astill J's order. He alone had considered the extension of time, and CPR 52.6(1) reserved that question to the appeal court.

5. The proposed appeal was not a second appeal under section 55(1) of the Access to Justice Act 1999. The matter before Astill J was whether to extend time. That differed from the matter decided by the deputy master, namely whether the action should be struck out.

6. Brooke LJ added that an appeal judge dealing with a late and unmeritorious appeal should recognise the procedural consequences of the chosen order. Refusal of permission ends the appellate process, while refusal to extend time may permit a further challenge and cause additional expense and delay.

7. Brooke LJ also corrected Clark v Perks [2001] 1 WLR 17: an appeal from a district judge's assessment of damages in the High Court ordinarily lies to a High Court judge, rather than to a circuit judge. Permission to rely on further evidence was granted, and the matter was listed for the following day.

1. Court of Appeal: Held in [2001] EWCA Civ 759 that, subject to permission, it had jurisdiction to entertain an appeal from Astill J's refusal to extend time. Permission to rely on further evidence was granted and the matter was listed for the following day.

2. High Court, Owen J: Refused permission to appeal from the order of Deputy Costs Judge Thum and refused an extension of time to appeal from the orders of Deputy Master Chism and Astill J.

3. High Court, Astill J: Refused to extend the time for appealing from Deputy Master Chism's order.

4. High Court, Deputy Master Chism: Struck out the professional negligence claim against the solicitors.