Balmoral Group Ltd v Borealis (UK) Ltd & Ors Rev 1

An application for permission to appeal should be made to the lower court at the hearing when the decision is made. The hearing may be adjourned to enable a later application, but a party cannot obtain permission from the lower court after that hearing has ended. The application must then be made to the appeal court. The lower court may nevertheless extend the time for filing an appellant’s notice. The extension is a case-management decision, taking account of the complexity of the case, the usefulness of the proposed notice, prejudice, finality and the administration of justice.

The claimant had previously failed in its claim, while the defendants succeeded on their counterclaim. Judgment was given on 25 July 2006. The claimant did not seek permission to appeal at the hearing, but later changed its mind and applied for an extension of time both to seek permission from the trial judge and to file an appellant’s notice.

The court therefore considered whether the trial judge retained power to entertain a late application for permission, whether the later costs and interest hearing continued the original hearing, and what extension should be allowed for filing the appellant’s notice.

1. Permission to appeal. Rule 52.3(2) and Practice Direction paragraphs 4.3B, 4.6 and 4.7 provide a choice. Permission may be sought from the lower court at the hearing at which the decision is made. If further time is required, the party must request an adjournment of that hearing for the application to be made later. Otherwise, permission must be sought from the appeal court.
2. The hearing at which the substantive decision was made ended on 25 July. The later hearing dealing with costs and interest was a separate hearing and did not continue the original hearing. The court therefore had no power to extend time so that a subsequent application to the trial judge would be treated as having been made at the original hearing.
3. Appellant’s notice. Rule 52.4 permitted the court to extend the time for filing the appellant’s notice. The approach in Aujla v Singhera [2004] EWCA Civ 121 confirmed that power, even where no extension had been granted when judgment was given.
4. The court granted a generous extension to close of business on 29 September 2006. Relevant considerations included the complexity and length of the judgment, the need for careful analysis of factual and expert evidence, the usefulness of a fully reasoned notice, the limited prejudice to the successful defendants, and the interests of the administration of justice. The extension expressed no view on whether permission should ultimately be granted.

The substantive claim was dismissed and judgment was entered for the defendants on the counterclaim on 25 July 2006. This judgment concerned the claimant’s subsequent applications relating to a proposed appeal.