Kohanzad v Mazurek

When deciding whether to extend time for setting down an appeal, the court must apply the overriding objective in rule 1 of the Civil Procedure Rules. It should weigh fairness, delay, proportionality, the amount at stake, the prospects of success and the proper use of appellate resources. An extension may be refused where substantial delay and seriously disorganised materials leave no real prospect of success and make further use of court resources disproportionate.

Mr Kohanzad sought an extension of time to set down an appeal from an Oldham County Court order made by His Honour Judge Carter on 9 February 2000, which required him to pay costs summarily assessed at £3,000.

Judge LJ had granted permission in principle on 8 June 2000, subject to an affidavit being sworn within seven days. Although Mr Kohanzad said that he later lodged the appeal after delay concerning fee remission, he did not set it down within the prescribed period. Further issues arose because he had been declared a vexatious litigant under section 42 of the Supreme Courts Act and had subsequently been made bankrupt on the respondent’s petition. The central issue was whether fairness justified extending time in the circumstances.

Disposition. Lord Justice Schiemann refused the application to extend time for setting down the appeal. There was no order as to costs.

1. The court remained bound by rule 1 of the Civil Procedure Rules. The overriding objective required the court to deal with cases justly, including by saving expense, acting proportionately to the amount involved, the importance and complexity of the issues, and the parties’ financial positions, dealing with matters expeditiously and fairly, and allocating an appropriate share of court resources.
2. The relevant question was whether fairness was better advanced by granting or refusing the extension. The permission in principle had been conditional on the applicant taking the required step within seven days. He failed to set the appeal down within that period and allowed more than two years to pass.
3. The papers were in a state of serious disorder. Their presentation made the case exceptionally difficult to understand. On the material available, the court could not be satisfied that the proposed appeal had a real prospect of success, and there was no reason to expect that the position would improve.
4. The judge acknowledged that the applicant might have had a genuine grievance, but held that sympathy could not justify using Court of Appeal resources for an appeal concerning the sum at stake in those circumstances. The delay and inadequate presentation were matters for which the applicant was responsible.
5. Permission granted by Forbes J under section 42 of the Supreme Courts Act did not amount to an exercise of the Court of Appeal’s own jurisdiction. The judge also expressed the provisional view that, following the bankruptcy and appointment of an official receiver, pursuit of the appeal should be with the receiver’s assent, although he did not determine that issue because the relevant details were unavailable.

• Oldham County Court: On 9 February 2000, His Honour Judge Carter ordered Mr Kohanzad to pay costs summarily assessed at £3,000.
• Court of Appeal (Civil Division): Judge LJ granted permission to appeal in principle on 8 June 2000, subject to a seven-day affidavit condition. Lord Justice Schiemann refused the subsequent application to extend time for setting down the appeal.