Lukas & Anor v Maltin & Ors

A party who attends a directions hearing and is informed of the hearing date and evidence timetable cannot rely on the later absence of formal notification to establish a viable appeal. Where the proposed appeal has no prospect of success, permission must be refused. The court may nevertheless extend time to consider the application on its merits, even where the grounds for extension are weak.

The applicants, including directors of Organic Power Holdings Limited, sought permission to appeal against an order made by Mr Registrar Jaques on 19 October 2004. The order deemed an allocation of shares to have occurred on 27 January 2004 following a petition by minority shareholders alleging unfair prejudice caused by the directors’ failure to complete the allocation.

The applicants had attended a directions hearing on 23 July 2004, when the Registrar fixed the hearing date and deadlines for evidence. They later claimed that they had not received formal notification of the order or hearing. The issues were whether time should be extended and whether the proposed appeal had any realistic prospect of success.

The Court of Appeal extended time for the application but dismissed the application for permission to appeal.

1. Knowledge of the directions. Mr Maltin attended the directions hearing on 23 July 2004. The order recorded his attendance, and he accepted that the Registrar had given the date of the adjourned hearing and the deadline for filing evidence. The applicants were therefore aware of the relevant dates.
2. Formal notification. The applicants’ contention that they had not received the formal order until October did not assist them. Their lack of a later formal notification did not undermine the fact that the directions had been given in their presence. The documentary evidence also showed that Mr Maltin knew of the 19 October hearing, including through his correspondence with the court and the other side.
3. Prospects of appeal. The proposed appeal had no prospect whatsoever of success. The complaint that the order had not been passed to the applicants before the evidence deadline was without merit in the circumstances established by the evidence.
4. Delay and order. The application was substantially out of time and had initially been filed in the High Court. Although there were no strong arguments for extending time, the court extended time and then dismissed the application for permission to appeal.

• Court of Appeal (Civil Division): application for permission to appeal dismissed after time was extended.
• High Court of Justice, Chancery Division (Companies Court): Mr Registrar Jaques ordered on 19 October 2004 that the allocation of the shares be deemed to have taken place on 27 January 2004.