Westminster City Council v Porter & Anor

In deciding whether to extend time for an appeal, the court must weigh procedural default and its effect on the administration of justice against the importance of shutting out the proposed appeal. A substantial or potentially academic debt does not, by itself, justify refusing an appeal on a substantial point. Where delay and non-compliance have occurred, an extension may be granted conditionally on safeguards including disclosure of appeal funding, payment of outstanding costs orders and security for costs.

The Council obtained summary judgment in the High Court, Chancery Division, on claims against the first respondent arising from a certified loss attributed to her conduct as a former council leader. Judgment was entered both for a statutory debt and, subject to permission to appeal, on a breach of trust claim. Hart J granted permission to appeal on the trust claim and made ancillary costs orders.

After confusion over the form and timing of the orders, the first respondent attempted to file her notice of appeal out of time. Master Venne granted an extension, with liberty to apply to vary or revoke it. The Council challenged the delay, non-compliance with costs orders and absence of information about funding. The central issue was whether the extension should stand and on what conditions.

1. Appeal allowed. The order of Master Venne was varied. The extension of time for the appeal was permitted conditionally upon compliance with four requirements.
2. Lord Justice Carnwath considered the checklist under CPR 3.9. The procedural confusion and delay were attributable in part to the holiday period, but the first respondent accepted responsibility for failing to ensure that the order was correctly drawn and that the necessary applications were made promptly. The notice of appeal also stated that all orders had been complied with when costs orders remained unpaid.
3. The existence of an undisputed statutory debt of about £27 million, which the first respondent appeared unable to meet, did not make the proposed appeal irrelevant. Although the additional trust claim might be regarded as academic in practical terms, it represented about £10 million. It would be serious to shut out the appeal merely because of confusion over dates.
4. The funding of the appeal and compliance with existing costs orders raised more serious concerns. The court therefore ordered disclosure of the funder’s identity within 14 days; payment of the outstanding costs orders of £80,000, £1,330 and £4,118, with available cash payable within 14 days and the balance within 28 days; payment of £8,000 towards the application costs from non-frozen assets within 28 days; and security for appeal costs of £20,000 within 28 days, from assets outside the freezing order.
5. The extension was conditional upon performance of all four requirements. The defendants were ordered to pay the costs of the application, assessed at £8,000.

• High Court, Chancery Division: Hart J gave summary judgment on 31 July 2002, granting permission to appeal on the breach of trust aspect and making ancillary costs orders. Master Venne later granted an extension of time for filing the appeal, with liberty to apply to vary or revoke the order.
• Court of Appeal (Civil Division): The appeal was allowed and Master Venne’s order was varied by imposing conditional requirements for the extension of time: [2002] EWCA Civ 1591.