A (Children), Re

An extension of time for appealing is exceptional. A litigant in person’s lack of legal knowledge, funds or legal advice does not, without more, justify a substantial delay, particularly where an alternative remedy is available. The court may consider the merits as a check even when refusing an extension. Permission should be refused where the proposed appeal has no real prospect of success. An appellate court should not use an appeal to reopen evidence-based factual findings without an identifiable basis for disturbing them.

JK, formerly Mrs A, applied for permission to appeal against an order made by HHJ Hughes QC on 2 May 2008. The order included a refusal to set aside the transfer of the property in which she had been living. Her Appellant’s Notice was filed approximately ten months late. She sought an extension of time, relying on her status as a litigant in person, lack of funds and absence of legal representation. The application also raised the judge’s jurisdiction, alleged disadvantage at trial and the finding that there had been no duress in the transfer.

The Court of Appeal considered both the delay and the merits, including the availability of proceedings under Part III of the Matrimonial and Family Proceedings Act 1984.

Application refused. Lord Justice Wall gave the principal judgment, with which Lord Justice Elias agreed.

1. Wall LJ held that the delay was excessive and inadequately explained. The circumstances relied on by the applicant, including being a litigant in person, having imperfect knowledge of procedure, lacking funds and receiving no legal representation, did not satisfy the stringent criteria for extending time. The availability of proceedings under Part III of the Matrimonial and Family Proceedings Act 1984 meant that any deficiency in the financial arrangements could be addressed through an alternative remedy.
2. The court nevertheless examined the merits as a check. Wall LJ was satisfied, on the explanation provided, that the judge had jurisdiction. The first-instance judge had recognised the applicant’s unrepresented and impecunious status, but had found that she conducted her case capably and was not disadvantaged. The judge’s findings of fact were supported by the evidence and could not sensibly be impugned.
3. Elias LJ agreed that a ten-month delay gave no justification for extending time. He emphasised that the proposed appeal sought to reopen the finding that there had been no duress in the transfer by revisiting the evidence, which was not the function of the appellate court. The appeal had no real prospect of success. The extension of time was refused, and permission to appeal was refused in any event on the merits.

• Court of Appeal (Civil Division)—[2009] EWCA Civ 676: refused an extension of time and refused permission to appeal.
• Principal Registry of the Family Division—HHJ Hughes QC made the order dated 2 May 2008, including refusing to set aside the transfer of the property.