Embling v General Municipal Boilermakers Union

An application for permission to appeal out of time requires both a satisfactory basis for extending time and a real prospect of success, or another compelling reason, in the proposed appeal. Where a judge refuses permission to appeal, rather than hearing an appeal, a further challenge is not a second appeal under section 55(1) of the Administration of Justice Act 1999. Delay must be assessed in the context of the litigation as a whole. Pursuing further evidence on the merits does not justify delaying an appeal against a limitation-based strike-out, particularly where the relevant facts were already known.

The claimant brought an action against his trade union alleging negligent advice and representation concerning his early retirement and possible redundancy from British Steel in 1990. A District Judge dismissed the action under Part 24 of the Civil Procedure Rules 1998, apparently on limitation grounds.

The claimant applied approximately 14 months later for permission to appeal out of time. His Honour Judge Cracknell refused permission. The claimant then applied to the Court of Appeal for permission to appeal against that refusal, together with an extension of time and permission to rely on further evidence. The central issues were whether the application was a second appeal, whether the delay should be excused, and whether the proposed appeal had a real prospect of success.

1. Nature of the application. The application to challenge a refusal of permission to appeal was not a second appeal within section 55(1) of the Administration of Justice Act 1999, because the lower judge had not heard an appeal and had decided a different matter. The approach in Foenander v in a Bond Lewis & Co was applied.
2. Extension of time and merits. The claimant had to obtain an extension of time and show a real prospect of success, or another compelling reason, in the proposed appeal. The delay of about 14 months after the District Judge’s order was substantial. The claimant already knew, by at least late 1998 or 1999, the matters on which he sought to rely. Further searches for seniority documents were directed to the substance of the claim and did not explain the failure to appeal promptly against the limitation decision.
3. Prospects of success. The contemporary documents and transcripts did not make the allegations of forgery, suppression or misleading conduct plausible. They instead indicated that the claimant faced a choice between early retirement and possible dismissal, and that the proposed further evidence would not alter the conclusion. It was unnecessary to rest the decision on the merits, but they reinforced the refusal of permission.
4. Orders. An extension of time was granted for the application concerning Judge Cracknell’s decision, but permission to appeal was refused. The application concerning further evidence was also refused. There was no order as to costs.

• Court of Appeal (Civil Division): The claimant’s action had been dismissed by District Judge Robinson under Part 24 of the Civil Procedure Rules 1998 on limitation grounds. His Honour Judge Cracknell later refused permission to appeal out of time. The Court of Appeal granted a limited extension of time but refused permission to appeal and refused the application concerning further evidence.