Sayers v Clarke Walker (Practice Note)

An appellant must file an appeal notice within the time running from the date of the lower court’s decision, rather than from the sealing of its order. In a complex application to extend that time, the court should apply the all-circumstances approach in CPR 3.9, read with the overriding objective, rather than devise a free-standing judicial checklist.

The court should assess promptness, intention, explanation, prior compliance, responsibility for the default, and the effects on both parties. Under the permission-to-appeal regime, the proposed appeal’s prospects may also matter when the balance is otherwise close. The ultimate question is whether refusal or grant of relief is proportionate and just.

Sayers v Clarke Walker was a professional-negligence action concerning accountants’ advice on a share purchase. Buckley J found the defendants negligent for failing to advise on an appropriate tax structure, but rejected a separate allegation concerning informal advice on price.

The defendants sought to challenge the rulings on liability and costs. Their appeal notice was lodged late because their solicitors believed that time ran from the order’s sealing, rather than from the relevant decisions. A single Lord Justice refused an extension. The renewed application was heard by a three-judge Court of Appeal because it raised a general question about extensions of time under the CPR appellate regime.

The central issue was the proper approach to an application made after expiry of the time for filing an appeal notice.

1. Application granted. Brooke LJ, with whom Kay LJ and Sir Christopher Staughton agreed, extended time for the defendants to file their appeal notice. The court deferred the separate question whether permission to appeal should be granted, directing a further short hearing on its merits.

2. CPR 52.4(2) requires filing within 14 days of the lower court’s decision, not the date on which the resulting order is drawn up or sealed. The court endorsed the deputy master’s ruling on that point. Practitioners must ascertain the governing rule themselves and cannot safely rely on informal registry telephone advice. An appeal notice may be accepted before an order is drawn if the necessary undertaking is given.

3. For a complex application to extend time for an appeal, the court should have regard to all the circumstances through the CPR 3.9 checklist. This is appropriate because refusal of an extension has the same practical consequence as refusal of relief from an express sanction: the lower court’s order stands and cannot be appealed. The overriding objective remains applicable. The court followed the warning in Audergon v La Baguette [2002] EWCA Civ 10 against judge-made checklists that rewrite the rules.

4. The factors included the administration of justice, promptness, intention, explanation, earlier compliance, responsibility for default, and the effects of the default and relief on each party. Prospects of the proposed appeal may be weighed where the other factors do not clearly resolve the balance. The pre-CPR approach in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 was not applicable under the permission-to-appeal regime.

5. Although the delay and the defendants’ prior procedural defaults favoured refusal, the default was unintentional. It arose during the early operation of the new appellate rules and was followed by a prompt application once the deputy master’s ruling was received. Refusal would have been disproportionate in the particular circumstances, despite the real prejudice and anxiety caused to the claimant.

• Court of Appeal (Civil Division) — on a renewed application, extended time for filing the appeal notice under the CPR, but deferred determination of permission to appeal: [2002] EWCA Civ 645.

• Queen’s Bench Division (Buckley J) — made rulings on liability on 12 October 2001 and costs on 17 October 2001. The resulting order was sealed on 16 November 2001.