Generay Ltd v Containerised Storage Company Ltd

Serious delay in complying with appellate directions does not necessarily bar reinstatement where the delay is satisfactorily explained and was not the litigant’s fault. The court must consider relevant prejudice to the respondent. Loss of a previously instructed advocate because of that advocate’s later judicial appointment is an ordinary litigation risk, not by itself relevant prejudice. Where the papers have already been read and the proposed grounds show a sufficient prospect of success, the court may determine permission at the reinstatement hearing, avoiding unnecessary further costs.

The Central London County Court, before His Honour Judge Roger Cooke, declared on 7 October 2002 that the disputed land belonged to Generay Ltd by adverse possession. Containerised Storage Company Ltd lodged a notice of appeal and applied for permission to appeal. Following repeated failures to comply with directions concerning appeal bundles, Master Venne made an unless order on 4 June 2003. The order was not complied with and the permission application was dismissed.

The company sought review and reinstatement under CPR 52.16(5). Generay opposed the application on the basis of delay and prejudice, including the loss of its trial counsel after his appointment to the High Court Bench. The central issues were whether the delay was sufficiently explained, whether relevant prejudice had resulted, and whether the proposed appeal had a sufficient prospect of success.

The Court of Appeal granted the application to reinstate the dismissed application for permission to appeal and granted permission to appeal. Permission was also granted to amend the appellant’s notice.

1. The delay was serious, but the material delays from about March 2003 were caused by the company’s solicitors and counsel. The company’s director had not been informed that the permission application had been dismissed and had reasonably been given the impression that the appeal was proceeding. Those delays were satisfactorily explained and were not of the applicant’s making. They should therefore not be held against the company.
2. The approach in Woolwich Building Society v Raja supported examining whether delay impaired a fair determination of the application or appeal and whether the respondent had suffered relevant prejudice. Mere cost or convenience in preserving the existing order was insufficient.
3. The loss of Generay’s trial counsel, following his elevation to the High Court Bench, was not relevant prejudice preventing reinstatement. Counsel may become unavailable for many reasons, and changing counsel is an inherent risk of litigation.
4. The amended grounds disclosed a sufficient prospect of success to justify permission. Since the court had already read the papers for the reinstatement application, it was entitled to determine permission at the same ex parte hearing rather than incur the additional costs of a further hearing.
5. The appeal was to have a one-day time estimate and, although no formal expedition order was made, it was to be heard as soon as possible in view of the delays.

• Court of Appeal (Civil Division): In the judgment reported at [2004] EWCA Civ 896, the court reviewed the dismissal, reinstated the permission application, granted permission to appeal and allowed amendment of the appellant’s notice.
• Central London County Court: On 7 October 2002, His Honour Judge Roger Cooke declared that the disputed land was Generay Ltd’s property by adverse possession.