Cooper & Anor v Cooper

An appellate court will interfere with a discretionary procedural decision only where the judge considered an irrelevant matter, omitted a legally relevant matter, or reached a plainly wrong decision outside the permissible range. The allocation of weight to relevant factors is ordinarily for the judge exercising the discretion. A failure to refer expressly to the criteria for relief from sanctions will not justify intervention where applying them could not have altered the result.

The appellants sought to challenge a Land Registry adjudicator’s finding that the respondent had not signed a transfer of jointly owned property. The adjudicator had preferred the respondent’s and the attesting witness’s evidence, supported by handwriting evidence, and found the signature forged.

The appellants did not file an appellant’s notice within the 21-day period. Nearly six months later they sought permission and an extension of time, relying on alleged fresh material from HSBC and a local authority. HHJ Jarman QC refused the extension. The appeal alleged that he had insufficiently considered CPR 3.9.

1. Appeal dismissed unanimously. Lewison LJ held that the judge’s decision whether to extend time was discretionary. The Court of Appeal could intervene only if he considered legally irrelevant matters, failed to consider legally relevant matters, or reached a plainly wrong result outside the range of reasonable discretionary decisions.

2. The complaint concerning CPR 3.9 disclosed no such error. At the hearing below, counsel had referred the judge only to the overriding objective when asked upon what principles the discretion should be exercised. The judge therefore considered the matters to which he had been directed.

3. The submission that insufficient weight had been given to the administration of justice could not succeed. Weight was for the judge, unless the resulting decision was perverse. No perversity was alleged.

4. The judge was entitled to treat the HSBC material as evidence which could have been obtained before the adjudicator’s hearing. He was also entitled to rely on the absence of a good explanation for the delay after the local-authority material became available. The further delay after the adjudicator had pointed out that the appeal was out of time was substantial in the context of a 21-day appeal period.

5. The judge’s minor error as to the date when the notice was lodged was immaterial. Even if CPR 3.9 had been applied, the lack of justification for delay and the view taken of the underlying merits meant that the outcome would have been the same.

• Court of Appeal (Civil Division): dismissed the appellants’ appeal against the refusal of an extension of time: [2012] EWCA Civ 1012.
• High Court, Swansea District Registry: HHJ Jarman QC refused the appellants’ application for an extension of time to appeal from the Land Registry adjudicator’s decision.
• Land Registry adjudicator: found that the respondent had not signed the disputed transfer.