Graham v Hussain & Ors

An extension of time to seek permission to appeal may be set aside where the applicant has failed to make full and frank disclosure of material circumstances. That failure is particularly significant where an applicant, who is a solicitor, relies on an asserted lack of knowledge of appellate time limits. A possible error in the underlying judgment does not necessarily justify an extension of time, especially where the proposed appeal is unlikely to succeed. The court may also indicate that pursuing a further application would be ill-advised where the sums at stake are modest and the proposed appeal appears weak.

The defendants appealed from a judgment of Halifax County Court after a four-day building dispute. The claimant recovered less than £5,000, and the defendants were ordered to pay costs. Their application for permission to appeal was made nearly three months out of time and sought an extension based on alleged lack of advice about the applicable time limits.

Longmore LJ granted the extension but was later informed that the second defendant was herself a practising solicitor. The claimant also relied on a witness statement from Mr Garside, which the defendants had not drawn to the court’s attention when permission was sought. The central issue was whether the extension of time should be set aside.

1. The application was granted. The extension of time granted to the defendants was set aside. The claimant did not pursue his cross-appeal, and the county court judgment therefore stood.
2. The defendants’ application had presented them as dependent on solicitors’ advice and had failed to disclose that the second defendant was a qualified solicitor in practice. The Court of Appeal regarded the suggestion that she did not know that a time limit applied as incredible. That lack of frankness was sufficient to justify setting aside the extension of time.
3. The Court also considered the failure to draw Mr Garside’s witness statement to Longmore LJ’s attention. The statement potentially challenged invoices relevant to the county court judge’s calculations and might have affected the amount awarded. Lord Justice Carnwath was not sufficiently certain about when the statement had become available to rely on that point. Lord Justice Schiemann and Lord Justice Robert Walker’s agreement supported the broader reasoning.
4. The Court expressed the preliminary view that, even if an extension had been allowed, the proposed appeal concerning costs was unlikely to succeed. The county court judge had reasonably exercised his discretion in awarding costs despite the recovery being below £5,000, having regard to the defendants’ conduct. A possible £3,000 set-off would not alter that principle.
5. The defendants were ordered to pay the claimant’s costs of the application and the costs of resisting the appeal.

1. Court of Appeal (Civil Division): On 18 April 2002, the court set aside the extension of time granted to the defendants. The claimant did not pursue his cross-appeal.
2. Halifax County Court: After a four-day hearing, judgment was entered for the builder for less than £5,000, with the defendants ordered to pay costs.