McDonald v Rose & Ors

For appeals under the Civil Procedure Rules, the relevant decision date is the hearing at which the decision is formally given, including the formal hand-down of a reserved judgment. Time runs from that date, rather than from the sealed order or a later decision refusing permission to appeal.

A party seeking permission from the lower court must apply at that hearing or obtain a formal adjournment of it. An adjournment preserves the lower court’s jurisdiction to determine permission, but does not extend the time for filing an appellant’s notice. A party seeking an adjournment should also seek an extension of that time.

The applicant claimed, by proprietary estoppel, that assurances by his late parents entitled him to the companies and the greater part of their estates. Following a seven-day trial involving extensive oral evidence, HHJ Jarman QC found for the defendants in the High Court Business and Property Court in Wales: [2018] EWHC 445 (Ch).

After the reserved judgment was formally handed down on 9 March 2018, the applicant obtained an adjournment to make a written application for permission to appeal. He did not seek an extension of the 21-day period for filing an appellant’s notice. The notice was filed on 9 May 2018. The Court of Appeal considered whether it was out of time, whether relief from sanctions should be granted, and whether the proposed factual challenge had a real prospect of success.

1. Permission to appeal was refused. The appellant’s notice was filed out of time. The relevant decision was the substantive judgment formally handed down on 9 March 2018, not the later order refusing permission to appeal.

2. Under Civil Procedure Rules r 52.12, time ordinarily runs from the decision hearing. That includes the formal public hand-down of a reserved judgment. An application for permission to appeal may be made to the lower court at that hearing, including by a written application made before a hand-down at which attendance is excused.

3. If a party needs further time to formulate a permission application, it must obtain a formal adjournment of the decision hearing. The adjournment permits the lower court to decide the application later, usually on written submissions, but it does not extend the 21-day period for an appellant’s notice. The party should therefore also seek an extension of that period. If there was neither an application at the decision hearing nor an adjournment, the lower court cannot entertain a retrospective permission application.

4. The Court accepted that the relevant relief-from-sanctions framework was that in Denton v T.H. White Ltd [2014] EWCA Civ 906. The 40-day delay was serious and relatively significant, and the solicitors’ misunderstanding of the rules was not a good reason. The Court did not need finally to decide relief because the proposed appeal was doomed.

5. An appellate court will interfere with factual findings after a substantial oral trial only for an identifiable error, such as a material legal error, an unsupported critical finding, or a demonstrable misunderstanding or failure to consider relevant evidence. Applying that restraint, the Court held that the judge had fairly assessed the conflicting evidence about the alleged assurances. His findings disclosed no legitimate basis for challenge and the appeal had no real prospect of success.

• Court of Appeal (Civil Division): Permission to appeal was refused. The appellant’s notice was out of time and the proposed appeal had no real prospect of success.
• High Court Business and Property Court in Wales (Chancery Division): HHJ Jarman QC rejected the applicant’s proprietary estoppel claim in [2018] EWHC 445 (Ch). The judge later refused permission to appeal.