Richardson v Morton & Anor

An extension of time to appeal remains a discretionary remedy requiring a balance between finality in litigation and the correction of injustice. The usual factors include the length and reasons for delay, the merits of the proposed appeal and prejudice to the respondent. Where delay is substantially attributable to a later change in judge-made law, that change may constitute a special circumstance, but it does not justify an automatic extension. A litigant seeking to benefit from the change must act with the utmost dispatch. A long unexplained delay, particularly where respondents reasonably believed the litigation had ended and memories had deteriorated, may make it unjust to reopen the matter.

The claimant sought permission to appeal out of time against an order of Smedley J dated 13 February 1998, which struck out her professional-negligence claim against her former counsel and solicitors. The strike-out relied on advocate’s immunity, as then understood following Kelley v Corston [1998] QB 686. The House of Lords later abolished that immunity in Arthur JS Hall & Co v Simons [2000] 3 WLR 543. The claimant delayed about 10½ months after that decision before notifying the respondents that she intended to revive the claim. The central issue was whether the intervening change in law, weighed with the delay and potential prejudice, justified extending time.

The application for an extension of time for permission to appeal was refused. The claimant was ordered to pay both respondents’ costs of the appeal, subject to determination by a costs judge.

1. Applicable discretion. The court must balance the public interest in finality of litigation against the need to correct wrongs. The usual considerations are the length of the delay, its reasons, the prospects of the appeal if time is extended and the potential prejudice to the respondent.
2. Change in law. Where a substantial part of the delay results from an intervening change in judge-made law, special circumstances must also be shown. The change does not produce an automatic extension. The approach in Re Berkeley; Borrer v Berkeley [1945] Ch 1 and Property and Reversionary Investment Corporation v Templar [1978] 2 All ER 433 was treated as governing that issue.
3. Application. Greig Middleton & Co Ltd v Denderowicz [1997] 4 All ER 181 confirmed that special circumstances do not remove the need to examine delay and prejudice. The claimant gave no proper excuse for the very long delay after Arthur JS Hall & Co v Simons [2000] 3 WLR 543. The respondents and their insurers had treated the matter as concluded, and the passage of time materially impaired recollection, especially for the former counsel. In those circumstances, justice lay in refusing to reopen the concluded proceedings.
4. A litigant seeking to take advantage of a change in the law must act with the utmost dispatch, or risk serious injustice to respondents who were entitled to put the matter from their minds.

• High Court, Queen’s Bench Division: Smedley J struck out the professional-negligence claim on 13 February 1998.
• Court of Appeal (Civil Division): the application for permission to appeal out of time was refused.