Draycott Place RTM Company Ltd v Bordelais

An applicant who is ordered to lodge a transcript within a specified period must comply or seek an extension within that period. Failure to do so may cause a renewed application for permission to appeal to be dismissed automatically under the terms of the order. Permission to appeal should be refused where the proposed grounds disclose no error of law, merely seek to reargue the evidence or the exercise of discretion, have no realistic prospect of success, and disclose no other compelling reason for an appeal. A short delay in lodging an application may be excused where no consequential prejudice is shown.

The defendant appealed to the High Court from orders made by HHJ Taylor in the Central London County Court on 22 February 2013. Those orders set aside an earlier order, required payment of costs, and declared that the defendant’s application for permission to appeal against orders made by District Judge Fine on 11 July 2012 stood dismissed.

The underlying proceedings concerned a claim by the claimant for loss and damage arising from legal costs allegedly incurred by the defendant in breach of his duties as a director. The defendant had failed to provide a transcript within the period required by an earlier order and later argued that a subsequent order had superseded it. The issues were whether permission to appeal should be granted out of time, whether further evidence should be admitted, and whether the proposed appeal had any realistic prospect of success.

1. Extension of time. The application for permission to appeal out of time was lodged one day late. Since no consequential prejudice to the respondent was suggested, the extension was granted.
2. Compliance with the transcript order. The defendant was solely responsible for complying with the order of 22 August 2012 by lodging and serving the transcript within two months, or by applying for an extension within that period. He did neither. Under the express terms of that order, the renewed application for permission to appeal was automatically dismissed.
3. Interpretation of the later order. There was no realistic prospect of establishing that Judge Saggerson knew of the earlier order or intended to supersede it. The pro forma terms of the later order, the absence of any reference to the earlier order, the failure to recognise that the application and transcript had already been lodged, the error in the judge’s title, the volume of the papers and the illogicality of the order if the earlier order had been known were compelling indicators to the contrary.
4. Permission to appeal. The proposed grounds did not disclose an arguable error of law. They substantially invited the appellate court to substitute its view of the evidence and discretion for that of the lower court. The proposed appeal had no realistic prospect of success and there was no other compelling reason for it to be heard. The application for permission to appeal was therefore refused as wholly without merit.
5. The applications for a stay and for permission to rely on the respondent’s letters fell away.

• Central London County Court: HHJ Taylor’s order dated 22 February 2013 set aside an order of HHJ Saggerson, awarded costs, and declared the defendant’s permission application dismissed.
• High Court (Queen's Bench Division): The extension of time was granted, but permission to appeal was refused.