Cooper & Anor v Cooper

When permission is sought to challenge a discretionary refusal to extend time, the proposed appeal must identify an error of principle or a decision outside the wide ambit of discretion. The judge exercising the discretion under CPR 3.9 must consider each relevant matter. Material new evidence, a reasonable explanation for delay, the absence of any trial delay and the serious consequences of the order may be important considerations. Waiting for documentary evidence, rather than relying on hearsay, may be an arguable explanation for delay.

The appellants sought to challenge a Deputy Adjudicator’s dismissal of their application to vacate a restriction on the registered title to a property. The Deputy Adjudicator had concluded that the respondent’s signature on a 2006 transfer was forged. The notice of appeal was due within 21 days, but it was first filed unsigned and in the wrong court before being filed in the Swansea District Registry after further delay.

HHJ Jarman QC refused an extension of time, finding that one item of evidence could have been obtained earlier and that subsequent delays lacked a good explanation. Permission was refused on paper by Kitchin LJ. The central issue before the Court of Appeal was whether the proposed challenge to that discretionary refusal had a real prospect of success, having regard to the newly obtained evidence and the matters required by CPR 3.9.

Permission to appeal was granted.

1. A challenge to a discretionary decision could succeed only if the appellant identified an error of principle or showed that the decision fell outside the wide ambit of judicial discretion. The Court considered that the proposed challenge nevertheless had a real prospect of success within CPR 52.3(6).
2. The judge exercising the discretion under CPR 3.9 had to consider each of the matters required by that rule. HHJ Jarman QC had not done so expressly. That omission gave rise to an arguable issue on the permission application.
3. The housing benefit claim form was material evidence because the Deputy Adjudicator had been greatly impressed by Rebecca Rise’s evidence and credibility. The form could not have been obtained before the hearing. It was well arguable that the appellants were entitled to wait for the document rather than rely on hearsay that it existed and had been signed, particularly since such hearsay would not have been sufficient to support admission of new evidence and a retrial.
4. The delay and procedural defects remained significant difficulties. The HSBC authority might have been obtained earlier, and there had been delay after its receipt. The initial notice was also unsigned and filed in the wrong court. However, the appeal would not delay a trial, and the order had potentially deprived the appellants of half the value of their property. Those were important factors in the exercise of the discretion.

• Court of Appeal (Civil Division): Kitchin LJ refused permission on the papers. Lord Justice Etherton subsequently granted permission to appeal.
• Swansea District Registry: HHJ Jarman QC refused the appellants’ application for an extension of time to appeal.
• Land Registry adjudication: A Deputy Adjudicator dismissed the application to vacate a restriction against the property title.