Fluck & Anor v Walsall Metropolitan Borough Council & Anor

An application to extend time for appealing must be made promptly. A litigant’s mistaken intention to pursue proceedings in a European court does not excuse a failure to make timely enquiries about the domestic appeal process.

Permission to appeal may also be refused where the proposed grounds are unsupported by the material and the appeal would have no realistic prospect of success. The Court of Appeal may address those merits briefly even after refusing an extension of time.

The applicant sought an extension of time and permission to appeal from an order of Birmingham County Court dated 16 November 2001. The lower court had dismissed his claim against Walsall Metropolitan Borough Council and the Sheriff of Staffordshire for conversion, destruction and loss of property removed during enforcement of a possession order.

The claim concerned vehicles, tools, equipment and domestic goods allegedly damaged, lost or stolen after the applicant was removed from land owned by the Council. The lower court found the applicant’s evidence unreliable, rejected the allegations of damaging conduct and held that a notice requiring removal of goods from the storage yard had been duly served.

The central issues were whether the substantial delay should be excused and, if so, whether the proposed grounds concerning trial management and judicial bias disclosed an arguable appeal.

1. Extension of time. The application was made more than four months late. The applicant said that he had intended to proceed to the European Court of Justice and did not know that domestic remedies had first to be exhausted. The Court accepted that this was his state of mind, but held that it remained his duty to make prompt enquiries about the procedure for appealing. The explanation did not justify the delay, and the extension of time was refused.
2. Proposed grounds of appeal. The Court nevertheless considered the merits briefly. The applicant alleged that the trial judge had been incompetent, had mismanaged the timetable, had interrupted the trial to hear other cases and had been biased. Having read the judgment and the other material, Lord Justice Mantell found no support for those allegations, apart from the acknowledged interruptions and lengthy adjournment. Those matters were unsatisfactory where they occurred, but appeared unavoidable in the circumstances.
3. The lower court had made adverse credibility findings against the applicant and his witnesses, while accepting the defendants’ evidence that the removal operation had been conducted normally and professionally. It had also rejected the allegations of damage and concluded that the Council had taken reasonable steps, within its limited budget, to store and protect the goods. The Court considered that the proposed appeal would fail and that permission would not assist the applicant, who might incur further costs.
4. The application for an extension of time and permission to appeal was dismissed.

1. Court of Appeal (Civil Division): refused an extension of time and dismissed the application for permission to appeal.
2. Birmingham County Court: His Honour Judge MacDuff QC dismissed the claim for damages for conversion and destruction of property and made consequential orders concerning costs and the Council’s counterclaim.