Smith v Brough

An extension of time for appealing is exceptional. The court must apply the overriding objective and the relevant procedural checklist while balancing the interests of the prospective appellant, the successful party and the public interest in finality.

A very long delay will ordinarily be fatal where the proposed grounds were available when judgment was given. Further investigation into the likely result of a retrial, the procurement of additional evidence and concern about costs do not justify postponing the notice of appeal. Particular caution is also required before disturbing factual findings based on oral evidence and a site inspection.

The defendants sought an extension of time and, if granted, permission to appeal against a county court order made 39 months earlier. The Recorder had determined the boundary between two residential properties in favour of the claimants, granted a permanent injunction and awarded damages for trespass.

The proposed appeal challenged findings concerning a boundary agreement, estoppel, the position of fences and trees, and the documentary and historic boundary. The defendants also sought to rely on fresh evidence. The central issue was whether the exceptional extension should be granted despite the delay and the resulting prejudice to the successful claimants.

1. The application was refused. Litigation must ordinarily be final, and an appeal out of time is an exception reserved for rare and limited cases whose supporting facts can be strictly proved. The interests of successful parties in finality must be considered alongside the wider public interest: Taylor v Lawrence [2002] EWCA Civ 90; [2003] QB 528.

2. The court applied the overriding objective and the checklist in rule 3.9 of the CPR. The 39-month delay was exceptionally long. The applicants were legally represented, suffered no disability and deliberately refrained from filing an appeal. The proposed grounds were already available when judgment was delivered.

3. The applicants had no good explanation for the delay. They could have filed an appeal promptly and withdrawn it later if their investigations showed that a retrial would be futile. Time spent obtaining evidence about the position of the former fence, possible adverse possession and the likely outcome of a retrial did not justify postponing the notice. The additional survey evidence principally concerned features and photographs available before trial and would probably have been inadmissible on appeal.

4. The successful claimants were entitled to expect prompt service of a notice of appeal. They faced further expense and uncertainty, as well as possible evidential prejudice because no transcript or adequate contemporaneous note of the oral evidence and submissions remained. Sporadic correspondence beginning more than a year after judgment did not replace the required notice.

5. The applicants' potential property loss did not outweigh the other factors. An appellate court must also exercise particular caution before disturbing factual findings where the trial judge heard oral evidence and inspected the site. Those advantages could not be reproduced through photographs.

6. Brooke LJ agreed. For extensions exceeding about two months, the court should bear the fundamental principle of finality, and the exceptional nature of out-of-time appeals, firmly in mind when identifying the interests of the administration of justice.

1. Court of Appeal (Civil Division): Refused the defendants' application for a 39-month extension of time and consequently refused permission to appeal. The applicants were ordered to pay the respondents' costs, with £12,500 payable on account.

2. Newcastle upon Tyne County Court: Mr Recorder Hirst determined the boundary in favour of the claimants, granted a permanent injunction and awarded damages for trespass.