Asiansky Television Plc & Anor v Bayer-Rosin (a firm)

An extension of time should be refused where delay is substantial and inadequately explained, particularly where it causes prejudice through loss of finality, wasted expense and inefficient use of court resources. The proposed appeal’s prospects are relevant.

A judge may determine an intermediate outcome arising from an agreed question, even if neither party advanced it as its case. The claimant retains the burden of proving the asserted counterfactual loss.

On costs, appellate intervention requires an arguable error of principle; disagreement about the weight given to relevant factors is insufficient.

The claimants sued their former solicitors concerning advice given on the purchase of a development site. After a retrial, Cresswell J found that, if properly advised, Mr Patel would have proceeded with the purchase but negotiated a £300,000 reduction, and judgment was entered for that sum.

The claimants sought permission to appeal the substantive judgment and the later costs order. The substantive appeal was approximately 12 months late. The issues included the justification for the delay, the judge’s adoption of an intermediate counterfactual outcome, and whether the costs decision involved an error of principle.

1. Applications refused. Permission to appeal was refused in relation to both orders.
2. The substantive order became unconditional by 25 June 2004 at the latest. The explanation did not justify the subsequent delay. The court balanced the possible injustice to the claimants against prejudice to the defendant and other litigants, including loss of finality, wasted expense and inefficient use of court resources. The proposed appeal had only a very slight prospect of success.
3. The agreed retrial question permitted the judge to find that Mr Patel would have proceeded subject to a possible price variation, despite neither party advancing that intermediate case. The claimants had to prove that he would have withdrawn altogether and failed to do so.
4. The costs appeal disclosed no arguable error of principle. It was insufficient that another judge might have weighed the relevant factors differently.

• Court of Appeal (Civil Division): [2005] EWCA Civ 1569. Permission to appeal was refused.
• High Court of Justice, Queen’s Bench Division: Cresswell J made the substantive order on 11 June 2004 and the costs order on 17 June 2005.