CIBC Mellon Trust Company & Ors v Stolzenberg

A party seeking an extension of time to seek permission to appeal must provide an adequate explanation for the delay, particularly where there has been a history of procedural non-compliance. It may be an abuse of process to pursue an out-of-time appeal after telling the first-instance judge that the party intends to comply with the order and seeks further time to do so. The proper course is ordinarily to pursue that application before the first-instance judge and appeal, if necessary, after it has been determined.

The claimants pursued substantial fraud-related proceedings against the applicant, who had repeatedly failed to comply with orders requiring discovery. On 2 October 2000, Mr Justice Neuberger made further unless orders requiring the applicant to provide a list of documents and to pay £8,500 in previously ordered costs. The order also refused permission to appeal but extended time for a further application to the Court of Appeal.

The applicant wrote to the judge seeking three months to raise the costs and stating that he would provide the documents. He did not pursue that request and filed an appellant’s notice which was treated as filed about three weeks out of time. The Court of Appeal considered whether time should be extended and permission to appeal granted.

1. Disposition. Lord Justice Chadwick refused the application for an extension of time and dismissed the application for permission to appeal.
2. The applicant had provided no explanation for filing the application out of time. In the light of the prolonged history of non-compliance with discovery orders, he was required to explain why relief from the time limit should be granted.
3. The order of 2 October 2000 established a coherent procedural sequence. The applicant could pay the £8,500 within 28 days, apply to Mr Justice Neuberger for the order to be varied or discharged, or seek permission to appeal within the extended period. The order also allowed further time to be agreed for compliance with the discovery requirement.
4. The applicant had written to the judge stating that he was prepared to provide the documents and needed further time to raise the costs. Having adopted that position, it was abusive for him to come to the Court of Appeal out of time to appeal against the orders. His proper course was to pursue the application for further time before the judge.
5. An appeal could be considered after that application had been determined. At that stage the appellate court would know the reasons for the judge’s decision, the evidence concerning the applicant’s means, and the extent of any progress towards providing the outstanding documents.

1. Court of Appeal (Civil Division): Refused an extension of time and dismissed the application for permission to appeal.
2. High Court: On 2 October 2000, Mr Justice Neuberger dismissed the claimants’ application for judgment in default but made further unless orders concerning discovery and payment of £8,500 in previously ordered costs. Permission to appeal was refused, subject to the extended time provisions in the order.