French v Carter Lemon Camerons LLP

When deciding whether to extend time for filing a notice of appeal, an inadequate explanation for delay may be overcome only if the proposed appeal has sufficiently strong merits. Where the appeal has no real prospect of success, the court may refuse an extension despite sympathy for a litigant in person or other difficulties causing delay. If an appeal has stood dismissed under an unless order, applications concerning evidence or further information for that appeal become irrelevant unless the order, or the finding of non-compliance, is successfully challenged.

The applicant had instructed solicitors in connection with litigation and later obtained a detailed assessment of their bill under section 70 of the Solicitors Act 1974. Permission to appeal the assessment was granted on three grounds. In related professional-negligence proceedings, the applicant sought to use disclosed documents in the costs appeal and served a request for further information under Part 18 of the Civil Procedure Rules 1998.

Swift J dismissed both applications on 2 October 2014 and ordered the applicant to file an affidavit of means, providing that the appeal would stand dismissed unless she complied. The affidavit was held insufficient on 6 October, so the appeal stood dismissed. The applicant renewed an application for permission to appeal and sought an extension of time. The central issue was whether there was any real prospect of reviving the appeal.

Disposition. The renewed application for permission to appeal was refused, and the necessary extension of time was refused.

1. Extension of time. The applicant’s status as a litigant in person, the stress of litigation, delay in obtaining the transcript, medical problems and other matters did not, individually or cumulatively, provide a sufficient explanation for filing the notice of appeal 26 days late. Such a deficiency could nevertheless be overcome if the proposed appeal had sufficiently strong merits. The court therefore considered the merits.
2. Effect of the unless order. The order requiring an affidavit of means had caused the appeal to stand dismissed when the affidavit was found insufficient. The applications concerning documents disclosed in the negligence proceedings and the request for further information under Part 18 had consequently become irrelevant. The applicant could succeed only by overturning the requirement to provide the affidavit or the decision that the affidavit did not comply.
3. Prospects of challenge. There was no substantial ground for challenging the unless order. The applicant had been represented by counsel when it was made, and no substantive objection had been advanced. The notice of appeal did not challenge the finding that the affidavit was defective. Although additional documents sought to raise that issue, doing so would require a very late amendment, and it was too late to pursue that challenge.
4. Since there was no real prospect that the appeal could be reinstated, an appeal against Swift J’s order could not succeed. The court therefore refused the extension of time rather than permitting the proposed appeal to proceed.

• Court of Appeal (Civil Division): Following Underhill LJ’s refusal on paper on 6 March 2015, the court refused the renewed permission application and the necessary extension of time: [2015] EWCA Civ 785.
• High Court of Justice, Queen’s Bench Division: Swift J dismissed the applications concerning use of documents and further information on 2 October 2014. An unless order required an affidavit of means, and on 6 October 2014 the appeal was held to stand dismissed because the affidavit was insufficient.