Bowden & Anor v Lancashire County Council

An extension of time for appealing is discretionary. The court must assess the overall delay, its explanation, the merits and any prejudice, but a potentially arguable point of law does not by itself justify exceptional delay. Where the delay substantially exceeds the period prescribed by the rules and remains inadequately explained, an extension may properly be refused.

On the proposed negligence claim, the local authority’s emergency application under Children Act 1989, section 75, did not itself cancel the registration. The cancellation order was made by the justices. The authority therefore did not plainly owe a common law duty of care merely because its application initiated the process, although the point was not finally determined.

The claimants operated a registered children’s nursery. In 1994 Lancashire County Council made an ex parte application under section 75 of the Children Act 1989 for cancellation of the registration. The justices made the order, but the claimants successfully appealed because the circumstances did not amount to a sufficient emergency.

The claimants later brought negligence proceedings alleging that the council had acted unreasonably in using the emergency procedure. A preliminary issue was decided against them by His Honour Judge Wilcox, sitting as a High Court judge, on 18 January 2001. Their notice of appeal was filed more than a year late. Latham LJ refused permission and an extension of time. The issue before the Court of Appeal was whether that refusal should be revisited.

1. Applications refused. The delay exceeded one year, whereas the applicable period for filing the notice of appeal was 14 days. May LJ accepted that parts of the delay could be explained by legal aid and counsel-related difficulties, but the overall delay remained grossly excessive and inadequately explained. He agreed with Latham LJ that an extension would be unjustified.
2. In exercising the discretion, the court considered the arguability of the proposed appeal and prejudice. The proposed legal argument was not unarguable, particularly in view of later authorities concerning common law liability arising from statutory functions. However, the merits were unlikely to succeed and did not outweigh the delay. If the appeal succeeded, the factual trial would concern events dating from 1994, so the absence of immediate prejudice could not be assumed.
3. The underlying duty argument was also weak. The council’s statutory obligations concerned the registration of child-minders and day-care providers. The claimants did not allege a breach in considering registration or in taking steps to address the issue. The council made the emergency application, but the justices decided whether to entertain it and made the cancellation order.
4. The fact that the order was later set aside because the emergency procedure should not have been used did not establish that the council owed a common law duty not to make the application. The merits of the alleged substantive wrongdoing had never been finally determined.

Peter Gibson LJ agreed. The applications for an extension of time and permission to appeal were refused. Legal aid taxation of the applicants’ costs was ordered.

• Court of Appeal (Civil Division): [2002] EWCA Civ 569. Applications for an extension of time and permission to appeal refused.
• Queen’s Bench Division: His Honour Judge Wilcox, sitting as a High Court judge, decided the preliminary issue against the claimants on 18 January 2001.
• Blackpool Justices: on 3 February 1994, made an order cancelling Mrs Bowden’s registration under section 75 of the Children Act 1989.
• Earlier Court of Appeal proceedings: on 18 June 1994, dismissed the council’s appeal and affirmed Hollis J’s order allowing the claimants’ appeal against the justices’ order.