CCMsnc v Coverimport Ltd

In an application made substantially out of time, the court considers both the explanation for delay and the proposed appeal’s merits. An unsatisfactory explanation is not necessarily decisive if the proposed appeal has real strength. However, where the challenge has no cogent basis and the appeal would inevitably fail, permission and any necessary extension of time should be refused. Where the decision turns on a trial judge’s assessment of the reliability of principal witnesses, the applicant must identify a cogent basis for challenging that assessment.

CCMsnc obtained judgment against Coverimport Ltd in the Luton County Court on 25 July 2001 for £7,717.93, with costs to be assessed. The dispute arose from the termination of a commercial agency agreement concerning foodstuffs supplied to Netto. The recorder found the termination unlawful, assessed damages and an indemnity under regulation 17 of the Commercial Agents (Council Directive) Regulations 1993, and dismissed the counterclaim. Coverimport applied substantially out of time for an extension and permission to appeal. The central issues were whether the delay could be excused and whether the proposed appeal had sufficient merit.

Applications refused. Lord Justice Simon Brown considered both the application to extend time and the application for permission to appeal.

1. The explanation for delay was that the defendant initially decided not to appeal because it expected the claimant’s costs to be about £6,000, but later faced a claim exceeding £10,000. That was not a legitimate basis for extending time. Nevertheless, sufficiently strong merits might justify an extension despite an inadequate explanation.
2. The proposed appeal had no true merit. The recorder had heard detailed evidence from the two principal protagonists, Mr Creek and Mr de Luca, and preferred Mr de Luca’s evidence. He rejected the defendant’s allegations of breach, found the immediate termination unlawful, assessed the resulting damages and indemnity, and dismissed the counterclaim. The Court of Appeal was wholly unpersuaded that any cogent basis existed for challenging those findings.
3. Once the credibility issue had been resolved in the claimant’s favour, the judgment necessarily followed. The proposed appeal was therefore doomed to inevitable failure and would create further substantial costs liability. Both the application for an extension of time and the application for permission to appeal were refused.

1. Court of Appeal (Civil Division): On 18 June 2002, Lord Justice Simon Brown refused the application for an extension of time and permission to appeal: [2002] EWCA Civ 891.
2. Luton County Court: On 25 July 2001, Mr Recorder Clover gave judgment for the claimant for £7,717.93, ordered costs to be assessed, awarded an indemnity under regulation 17 of the Commercial Agents (Council Directive) Regulations 1993, and dismissed the counterclaim.