Upton v National Westminster Bank Plc & Ors

Procedural time limits must be complied with unless good reasons justify the failure. Reinstatement of a dismissed, substantially out-of-time permission application requires a satisfactory explanation for the delay. Travel, a wish to negotiate, lack of representation and dissatisfaction with legal advice did not amount to good reason in this case.

The 12-month period under section 7(5) of the Human Rights Act 1998 applies to proceedings brought under sections 6 or 7 of that Act. It does not govern an unrelated trust claim. The court also observed, alternatively, that the proposed appeal had no real prospect of success.

The claimant sought a declaration that he was entitled to his father’s share under trusts created by his grandfather’s 1930 Will. He relied on his status first as an illegitimate child and alternatively as an adopted child. The High Court rejected both contentions, rejected his human-rights arguments, refused permission to appeal and extended the time for lodging an appellant’s notice by one month.

The claimant’s out-of-time permission application was later dismissed for procedural defects and failure to progress it. He applied to reinstate it, relying on his absence in Australia, proposed negotiations with the Bank and difficulties obtaining legal assistance. The central issue was whether he had shown good reason for the substantial delay.

Application dismissed. Lord Justice Jonathan Parker gave the judgment, and Lord Justice Lloyd agreed.

1. The Civil Procedure Rules impose time limits which must be complied with unless good reasons explain the failure. Reinstatement here would inevitably require an extension of more than a year. The claimant had shown no good reason for that delay.
2. The claimant’s lack of legal representation before the High Court, his later dissatisfaction with lawyers, his absence in Australia and his wish to negotiate did not justify reinstatement. The application was therefore refused on the procedural ground of substantial unexplained delay.
3. The claimant’s reliance on section 7(5) of the Human Rights Act 1998 was misplaced. The 12-month period concerns proceedings against a public authority alleging conduct made unlawful by section 6. The present trust action was not proceedings under section 6 or section 7, so that period had no application.
4. Alternatively, the proposed appeal had no real prospect of success. The court regarded the High Court judge’s conclusions on the effect of English statute law as plainly right. Section 5(2) of the Adoption Act 1926 excluded an adopted child from the words child or children in a disposition unless a contrary intention appeared, while later provisions treating an adopted child as a child did not apply to a Will made before they came into force. The court also found no substance in the human-rights arguments and accepted the judge’s construction of the Will concerning an illegitimate child, which had relied on Re Brinkley [1967] 3 All ER 807.

The application to reinstate was dismissed, and permission to appeal was refused with costs.

• Court of Appeal (Civil Division) — In [2005] EWCA Civ 1479, dismissed the application to reinstate the claimant’s earlier permission application and refused permission to appeal with costs.
• High Court of Justice, Chancery Division, Leeds District Registry — On 29 July 2004, His Honour Judge Behrens declared that the claimant was not entitled to an interest under the trusts, rejected his human-rights arguments, refused permission to appeal and extended the time for lodging an appellant’s notice by one month.