Sayers v Clarke Walker (Practice Note)

Time for filing an appellant’s notice runs from the lower court’s decision, rather than the sealing of its order. On an application to extend time for appealing a final decision in a case of complexity, the court should consider all the circumstances, including the relevant CPR 3.9 factors. Those factors provide the appropriate framework in place of judicially devised checklists. Previous procedural defaults, responsibility for the delay and the effects on both parties are relevant. Where other considerations favour refusal or are evenly balanced, the strength of the proposed appeal must also be weighed. Solicitors remain responsible for understanding the rules, although the circumstances surrounding mistaken advice from court staff may inform the discretion.

Michael Sayers brought a professional negligence action against Clarke Walker, a firm of accountants which had assisted with his purchase of shares in his employer. Buckley J rejected the allegation of negligent advice about the purchase price but found that the firm had negligently failed to advise on a tax structure for the transaction. He delivered his liability judgment on 12 October 2001 and ruled on costs on 17 October. The resulting order was sealed on 16 November.

The accountants sought to challenge findings on causation and the costs ruling. Their solicitors mistakenly calculated the appeal period from the sealing of the order and relied on reported telephone advice from the Civil Appeals Office. An effective appellant’s notice seeking an extension was lodged on 20 December. Sedley LJ refused an extension on paper, and the accountants renewed their application before a three-judge court. The principal issue was the framework governing an application to extend time after the CPR appeal period had expired.

1. The renewed application for an extension of time was granted unanimously. Brooke LJ delivered the judgment, with which Kay LJ and Sir Christopher Staughton agreed. Permission to appeal remained for consideration at a further hearing.

2. Under CPR 52.4(2), time ran from the date of the decision being challenged. It did not await the drawing up or sealing of the order. The court endorsed the deputy master’s ruling that solicitors were responsible for understanding that change from the former practice. An appellant’s notice could be accepted before the order was drawn up, on a solicitor’s undertaking. Where compliance would be difficult, the appropriate course was to seek an extension from the lower court.

3. The power under CPR 3.1(2)(a) had to be exercised consistently with the overriding objective. In a case of complexity, the relevant CPR 3.9 checklist supplied the appropriate framework. Although the inability to appeal was not an expressly imposed sanction, its effect justified using that framework. The court approved the caution against rewriting procedural rules through judicial checklists in Audergon v La Baguette, [2002] EWCA Civ 10. It declined to adopt the bespoke checklist in Commissioners of Customs and Excise v Eastwood Care Homes, while endorsing its emphasis on justice and observance of time limits.

4. The court should consider all the circumstances, including promptness, intention, explanation, previous procedural compliance, responsibility for default and the effects on each party. A procedural appeal also required consideration of whether the trial date could still be met. The former qualification in Palata Investments Ltd v Burt & Sinfield Ltd, [1985] 1 WLR 942, was no longer relevant under the permission regime. Where other factors favoured refusal or were evenly balanced, the strength of the proposed appeal had to be weighed, rather than merely asking whether it crossed the threshold of a real prospect of success.

5. The accountants had a poor record of procedural compliance, and further delay imposed financial and personal burdens on Mr Sayers. Nevertheless, the present default was unintentional and attributable to their solicitors. The application followed shortly after definitive notification of the deputy master’s ruling. In the peculiar circumstances, refusing an extension would be disproportionate. A further 30-minute hearing was directed to consider permission to appeal.

• Court of Appeal: In [2002] EWCA Civ 645 , the court unanimously granted the renewed application for an extension of time and directed a further hearing on permission to appeal. Sedley LJ had refused an extension on paper on 22 January 2002.
• High Court, Queen’s Bench Division: Buckley J delivered judgment on liability on 12 October 2001 and ruled on costs on 17 October 2001. The accountants sought permission to challenge causation findings and the costs ruling. The resulting order was drawn up and sealed on 16 November 2001.