Harris Rosenblatt and Kramer (A Firm) v Bourne

Permission for a second appeal requires more than an arguable case or a real prospect of success. Under CPR 52.13, permission may be granted only where the proposed appeal raises an important point of principle or practice, or there is some other compelling reason for the Court of Appeal to hear it.

Substantial delay in seeking permission must have an adequate explanation. Difficulties with solicitors, changes of solicitor and waiting for legal aid will not ordinarily justify lodging an appeal one year and ten months out of time. Magna Carta and the European Convention on Human Rights do not provide a basis for disregarding the applicable appeal rules where the applicant has failed to act promptly.

The claimant firm had brought proceedings against the defendant for unpaid fees. The litigation included a counterclaim, several interlocutory orders and the striking out of the counterclaim as an abuse of process.

The defendant sought an extension of time and permission to appeal against an order made by Master Eyre on 7 May 1999. Holland J dismissed the application on paper, and MacKay J refused the renewed application on 5 May 2001 because the application was approximately one year and ten months late and had no real prospect of success.

The defendant applied to the Court of Appeal for permission to appeal against MacKay J’s decision. The central issue was whether the proposed second-tier appeal satisfied CPR 52.13.

1. Application refused. The proposed appeal was a second-tier appeal. CPR 52.13 required permission, and permission could be granted only if the appeal raised an important point of principle or practice, or if there was some other compelling reason for the Court of Appeal to hear it.
2. The provision implemented section 55(1) of the Access to Justice Act 1999. The court applied the guidance in Tanfern Ltd v Cameron-MacDonald [2000] 1 WLR 1311, including the need to use the Court of Appeal’s resources effectively. A second appeal could not proceed merely because it was properly arguable or had a real prospect of success.
3. The application did not raise an important point of principle or practice and disclosed no compelling reason for a second appeal. The defendant was nearly two years late and had provided no adequate explanation for the delay. Difficulties with solicitors, changes of solicitor and waiting for legal aid did not justify the failure to lodge an appeal in accordance with the rules.
4. The asserted reliance on Magna Carta could not establish a right to appeal out of time. The European Convention rights relied upon were irrelevant to the application, and the court could identify no breach arising from the defendant’s failure to apply promptly.
5. The court also considered that the proposed appeal lacked merit. The judge had exercised his discretion having regard to the substantial delay and the absence of an adequate explanation. The application would have been dismissed even if it concerned a first-tier appeal.

A copy of the judgment was to be provided to the applicant at public expense.

• Court of Appeal (Civil Division): Permission to appeal against MacKay J’s order was refused under CPR 52.13.
• High Court, Queen’s Bench Division: MacKay J refused permission on 5 May 2001, holding that the application was substantially out of time, lacked a sufficient explanation for the delay and had no real prospect of success.
• High Court: Holland J dismissed the application on paper on 7 May 2001.