Ritsma v Allen

Where an application to appeal out of time raises a potentially arguable defence and the explanation for delay requires further investigation, the court may adjourn the application to obtain evidence before deciding it. Relevant evidence may include the reasons for each period of delay, any failure in the administration of the appeal, and the original judgment or record of reasons. A provisional view that an appeal lacks merit should not determine the application where the material before the court is incomplete. The court made no final decision on permission or on the underlying merits.

The claimant bought a Volvo from Ms Allen and obtained judgment in the Plymouth County Court on 18 May 1999 in a claim alleging breach of contract and misrepresentation. The claim appears to have been treated as involving the sale of a vehicle that was not fit for purpose and whether Ms Allen was acting in the course of a motor-trading business. On 24 May 2000 Judge Overend refused permission to appeal out of time, citing the unexplained delay and the apparent lack of merit. Ms Allen applied to the Court of Appeal after further delay. The central issue was whether the application should be dismissed immediately or adjourned to allow the delays, possible court-processing problems and underlying merits to be investigated.

Ward LJ adjourned Ms Allen’s application and directed that it be relisted before him in September 2002.

1. The lower court’s view that the proposed appeal had no merit was not accepted as sufficiently established on the material available. The Court of Appeal had not investigated the matter in detail.
2. There appeared to be a possible defence to the claim. In particular, it was uncertain whether the available advertisements justified an inference that Ms Allen was in the business of selling motor cars. Her explanations that one vehicle belonged to her husband and that another had been bought as a replacement had not been resolved.
3. The explanation for the delay in seeking permission to appeal out of time also required consideration. Ms Allen relied on caring for her terminally ill father-in-law. She further asserted that the Plymouth court had not dealt properly with her papers and that her application to the Court of Appeal had been delayed while fee exemption was considered.
4. The application was therefore adjourned so that Ms Allen could produce evidence explaining the respective periods of delay and any court-processing failure. She was also directed to obtain as much of the original judgment as possible, including any notes or record of the district judge’s reasons.

The court did not determine whether permission to appeal would ultimately be granted, whether the delay was sufficiently explained, whether Ms Allen was a motor trader, or whether the underlying claim succeeded.

• Court of Appeal (Civil Division): On 26 July 2002 Ward LJ adjourned Ms Allen’s application and ordered that it be relisted before him in September 2002.
• Plymouth County Court: A district judge entered judgment against Ms Allen on 18 May 1999. On 24 May 2000 Judge Overend refused permission to appeal out of time, relying on the unexplained delay and the apparent lack of merit.