Deutsche Leasing (UK) Ltd v Zaskin College Ltd & Ors

Time for filing an appellant’s notice runs from the date the lower court pronounces its decision, normally the date judgment is handed down, rather than the later date when the order is drawn up or consequential matters are determined.

An out-of-time appeal is approached rigorously by applying the three-stage Mitchell/Denton framework. A serious and significant default, without a good reason and accompanied by prejudice, delay and further procedural failures, will ordinarily justify refusing an extension.

Fresh evidence on appeal remains subject to the Ladd v Marshall criteria. The overriding objective and the public interest in finality do not permit a party to improve its evidence after an unsuccessful trial.

The Appellants appealed from a Watford County Court judgment in favour of Deutsche Leasing, which dismissed their defence and counterclaim arising from machinery lease agreements and a personal guarantee. The judgment was handed down on 20 December 2017 and the consequential order was dated 19 January 2018.

The Appellants’ Notice was filed on 23 February 2018. The Appellants sought an extension of time, permission to amend their grounds, and permission to rely on fresh evidence. The central issues were when time began to run, whether the delay should be relieved, and whether the proposed evidence met the applicable test.

1. Time for appeal. The relevant date under CPR r 52.12(2)(b) was the date of judgment, 20 December 2017, not the date of the order, 19 January 2018. The 21-day period therefore expired on 10 January 2018. The Appellants’ Notice was 44 days late.
2. Extension of time. Applications to extend time for filing an appellant’s notice attract the rigorous approach applicable to relief from sanctions. The court must identify the seriousness and significance of the default, consider why it occurred, and evaluate all the circumstances, giving particular weight to efficient litigation and compliance with rules and orders. The multiple failures here were serious and significant. No good reason had been established. The Appellants had legal representation, had failed to act promptly after filing the notice, had not complied with procedural requirements, and had caused further cost, delay and prejudice. The application for an extension was therefore refused.
3. Fresh evidence. Although formal decisions on the remaining applications were unnecessary, the court considered them. The Ladd v Marshall criteria remained important under CPR r 52.21(2): the evidence must not reasonably have been obtainable for trial, must probably have had an important influence on the result, and must be apparently credible. The proposed evidence about a termination letter, training attendance and the Appellant’s honesty was available at trial, would not probably have changed the result, and presented serious credibility difficulties. It was also inconsistent with the finality of litigation to allow a second attempt to present evidence that could and should have been deployed at trial.
4. Dishonesty findings. The proposed complaint that dishonesty had not been fairly raised was hopeless. The allegation that the Appellant was lying about the January 2015 letter was put squarely to him, and credibility and truthfulness were directly in issue. No additional warning or procedure was required.
5. The application for an extension of time was refused. The applications to amend and to rely on fresh evidence would also have been refused if formal determination had been necessary.

• Watford County Court: Following trial, HHJ Melissa Clarke gave judgment for Deutsche Leasing and dismissed the defence and counterclaim. The judgment was handed down on 20 December 2017 and an order reflecting it was dated 19 January 2018.
• High Court (Queen’s Bench Division): The Appellants’ application for an extension of time to seek permission to appeal was refused. The proposed amendment and fresh-evidence applications were not formally determined, but the court indicated that both would have been refused.