Yeates v AVIVA Insurance UK Ltd

An application to extend time for filing an appeal must be determined under the Civil Procedure Rules r 3.9(1) checklist, with strict observance of appellate time limits. The prospective merits need be considered only where the extension issue is genuinely difficult. A litigant seeking substantial indulgence must give a candid and accurate explanation for the delay. Inactivity until enforcement, coupled with a false assertion of ignorance of the appeal deadline, will ordinarily justify refusal regardless of the proposed appeal’s merits.

The claimant’s home was damaged by flooding. He arranged for a company which he had incorporated, Pro Man Restorations Ltd, to submit repair and project-management documents to his insurer without disclosing that the company was effectively himself in corporate form.

HHJ Kaye QC, sitting in the Leeds Mercantile Court, granted the insurer summary judgment. The judge held that the documents gave the false impression that the company was separate from the claimant and his wife. He dismissed the claim and entered judgment on the insurer’s counterclaim for damages to be assessed, while granting permission to appeal.

The claimant served his appeal notice nearly eight months late. The Court of Appeal had to decide whether time should be extended, despite the claimant having been advised of the deadline and initially denying that knowledge.

1. Application refused. Longmore LJ, with whom Rimer and Kitchin LJJ agreed, refused an extension of time. Consequently, no appeal could proceed from the summary judgment.

2. The court applied the stricter approach endorsed in Sayers v Clarke Walker [2002] 1 WLR 3095. The Civil Procedure Rules r 3.9(1) checklist applied even though the consequence of late service of an appeal notice was an implied rather than express sanction. The modern procedural culture required compliance with time limits save in unusual circumstances.

3. The merits of a proposed appeal were relevant only if the extension issue was difficult to resolve. That approach had also been followed in Bank of Scotland v Pereira [2011] WLR 2391. This application was not difficult: the claimant had done nothing to pursue an appeal until the insurer enforced its judgment.

4. A party seeking a substantial extension must be full and frank with the court. The claimant had been told that the notice of appeal was due by 14 October 2010, but initially asserted that he had been unaware of any time limit. That false explanation, rather than any conduct of his former solicitors, was a powerful and almost conclusive reason to refuse relief, irrespective of the merits.

5. The underlying arguments about fraudulent claims and fraudulent devices were debatable, but began from the judge’s unarguable factual finding that the claimant had intended to give, and did give, a false impression about the company’s independence. The court did not determine those substantive insurance-law questions. They remained unavailable for decision because the necessary extension was refused.

• Court of Appeal (Civil Division) In [2012] EWCA Civ 634, the court refused the claimant’s application to extend time for serving his notice of appeal. The proposed appeal therefore could not proceed.

• Leeds Mercantile Court (Leeds District Registry) HHJ Kaye QC granted summary judgment for the insurer, dismissed the claimant’s claim, and entered judgment on the insurer’s counterclaim for damages to be assessed. The judge granted the claimant permission to appeal.