Fallon v Shell UK Ltd

Long delay in seeking permission to appeal will ordinarily prevent an appeal proceeding unless the circumstances are very exceptional. Difficulties caused by legal advice, or a desire to present the proposed appeal in perfected form, do not necessarily meet that threshold. The merits of the proposed appeal are a separate question from the application for an extension of time. Where the delay is not excused, the court may refuse the application without examining whether the proposed grounds have merit.

Mr Fallon, as assignee of Shelsaroy Limited’s claim, sought permission to appeal the assessment of damages made by Buckley J in the High Court on 14 December 2000. Liability for Shell UK Ltd’s misrepresentations concerning the prospects of a petrol-station franchise had been established, and damages were assessed at approximately £43,500.

The application was made about 18 months out of time. Mr Fallon relied principally on legal advice that an appeal was unlikely to succeed and on his wish to formulate the case properly. The proposed appeal challenged the High Court’s approach to measuring loss. The central issue was whether the delay justified an extension of time.

1. Application refused. The application for permission to appeal was approximately 18 months out of time.
2. The court recognised that long delay may, in very exceptional circumstances, not bar an appeal. The circumstances relied on here were not exceptional. Mr Fallon had formed the view by March 2000 that the advice he was receiving was wrong, had later obtained legal aid for further advice, and had been advised against appealing in August 2001 because of the risks, including costs. He nevertheless did not submit his application until July 2002.
3. The court treated the proposed challenge to the assessment of damages as a respectable argument. It concerned whether damages should be measured by comparing the claimant’s actual position with the position that would have existed without the misrepresentation, subject to mitigation. That issue was separate from the question whether permission should be granted after such substantial delay.
4. Because the delay was not satisfactorily excused and the circumstances were not very exceptional, the court refused the application without considering further the possible merits of the proposed appeal.

• High Court, Queen’s Bench Division: Buckley J assessed damages on 14 December 2000 at approximately £43,500, following an established claim for misrepresentation.
• Court of Appeal (Civil Division): The court refused Mr Fallon’s out-of-time application for permission to appeal and did not determine the proposed appeal on its merits.