Altomart Limited v Salford Estates (No. 2) Ltd (Rev 1)

A late respondent’s notice is subject to the same Mitchell principles as a late notice of appeal. Although the rules prescribe no express sanction for late filing, refusal of an extension prevents the respondent from advancing additional grounds to uphold the judgment and therefore has the character of an implied sanction.

The Denton approach applies. The court must assess the seriousness and significance of the default, its cause, and all the circumstances. A substantial delay is not necessarily serious or significant where it neither disrupts the appeal nor causes substantive prejudice. Enforcement of procedural discipline is important, but relief should not be refused merely to punish a default.

Salford appealed an order of His Honour Judge Bird staying its winding-up petition against Altomart so that disputes concerning service charges and insurance rent could be determined by arbitration.

Altomart wished to uphold the stay on additional grounds if the Court of Appeal rejected the judge’s reasoning on arbitration. Its respondent’s notice was filed 36 days after the prescribed period, following revised advice from newly instructed leading counsel. Altomart therefore sought an extension of time.

The central issue was whether the principles governing relief from sanctions applied to a late respondent’s notice and, if so, whether the extension should be granted.

1. Application granted. The court extended time for Altomart to file its respondent’s notice. Lord Justice Ryder and Mr Justice David Richards agreed with Lord Justice Moore-Bick.

2. Rules 3.8 and 3.9 of the Civil Procedure Rules concern sanctions imposed by the rule, practice direction or order that has been breached. Ordinarily, an application to extend time under rule 3.1(2)(a) is not itself an application for relief from such an express sanction.

3. However, established authority treats a late notice of appeal as carrying an implied sanction because refusal of an extension prevents the appeal from proceeding. The same reasoning applies to a respondent’s notice. Refusal prevents the respondent from pursuing grounds for upholding the decision which were not advanced below. The Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 principles therefore applied with equal force.

4. Applying the three-stage approach in Denton v T.H. White Ltd, Decadent Vapours Ltd v Bevan and Utilise T.D.S. Ltd v Davies [2014] EWCA Civ 906, the 36-day delay was considerable in duration but neither serious nor significant in its practical effect. The appeal was not due to be heard for several months. No adjournment or disruption to court business was likely, and Salford suffered no substantive prejudice beyond answering the additional arguments.

5. The explanation for the delay was unpersuasive, but that did not determine the application. Altomart promptly applied once the point was identified, accepted responsibility for the consequential costs, and had committed no other relevant procedural default. Refusal would have been punitive rather than a just application of the rules.

• Court of Appeal (Civil Division) Granted Altomart an extension of time to file a respondent’s notice in Salford’s pending appeal.

• High Court of Justice, Chancery Division, Manchester District Registry His Honour Judge Bird stayed Salford’s winding-up petition so that the relevant disputes could be determined by arbitration. Salford appealed that order.