Jackson v Marina Homes Ltd & Ors

When deciding whether to extend time for an appeal, the court applies the relief-from-sanctions considerations in rule 3.9 to the circumstances as a whole. A substantial apparent delay may attract less weight where the parties and lower court followed a confused procedure, the proposed appellant promptly acted after receiving the permission decision, the breach was neither intentional nor part of persistent non-compliance, and the appeal remains viable without disrupting its listing.

Where a reserved judgment is handed down without the parties attending, the lower court may adjourn the hearing so that permission to appeal can be sought. It should also direct the period for filing any appellant’s notice.

The claimant obtained permission to appeal and an extension of time from a single Lord Justice on a without-notice paper application. The third and fourth defendants applied to set aside that order.

Following a reserved judgment in the Chancery Division, the parties exchanged written submissions about permission to appeal. His Honour Judge Pelling QC refused permission by an order made on 21 May 2007, drawn on 4 June and served on 6 June. The appellant’s notice was filed on 27 June.

The central issues were whether the respondents could challenge the extension without establishing a compelling reason and, on a fresh assessment of the procedural history and the rule 3.9 considerations, whether time should be enlarged.

1. Application refused. The extension of time granted on the without-notice application would not be set aside. The appeal would proceed, costs of the application would be costs in the appeal, and the judgment would be reportable.

2. Sir Henry Brooke applied rule 3.9 in accordance with Sayers v Clarke Walker [2002] EWCA Civ 645, [2002] 1 WLR 3095. Although the apparent delay exceeded two months, the case differed materially from Smith v Brough [2005] EWCA Civ 261. The application for permission had not emerged unexpectedly. The respondents had addressed it in written submissions and all concerned had participated in a confused procedure outside the ordinary rules.

3. The application for relief was made promptly after notification of the lower court’s refusal. The breach was unintentional and resulted from the legal representatives’ failure to observe the strict procedural requirements. There had been no persistent disobedience, and responsibility lay with the representatives rather than the claimant. The scheduled appeal could still be heard without disruption.

4. The respondents faced continuing uncertainty and practical prejudice concerning the flats. Against that, refusing relief would immediately expose the claimant to substantial costs under a judgment which raised properly arguable points. The possibility that the lower court might have rectified its orders also made the procedural effect difficult to assess. In the circumstances, the interests of the administration of justice did not justify depriving the claimant of her appeal.

5. Lord Justice Sedley agreed with the result and enlarged time to 27 June 2007. He considered that the possible tension between rule 52.9(2) and paragraph 5.3 of the Part 52 Practice Direction should be approached on a level playing field. Where permission and an extension have been granted without notice, it may constitute a compelling reason to set aside permission if time ought not to have been enlarged.

6. The disproportionate costs generated by the underlying dispute could not affect the decision whether to preserve the viable appeal.

1. Court of Appeal (Civil Division): Refused the third and fourth defendants’ application to set aside the extension of time. Time was enlarged to 27 June 2007, the appeal was permitted to proceed, and costs were made costs in the appeal: [2007] EWCA Civ 1404.

2. Chancery Division, Manchester District Registry: His Honour Judge Pelling QC delivered a reserved judgment on 23 March 2007. After receiving written submissions, he refused permission to appeal by an order made on 21 May, drawn on 4 June and served on 6 June 2007.