Lemas & Anor v Williams & Anor (Costs)

An application to extend time for appealing should be approached with the same rigour as an application for relief from sanctions under Civil Procedure Rules 1998, rule 3.9. The court should consider the seriousness and significance of the default, the explanation for it, and all the circumstances of the case, including the merits and the need for finality. A delay of several months in appealing a judgment may be both serious and significant because it reopens a matter the respondent was entitled to regard as final. Financial difficulty, legal representation and the position of a litigant in person must be assessed against the evidence. Where there is no satisfactory explanation and the proposed appeal is weak, an extension should ordinarily be refused.

Mr Roderick Lemas sought an oral review of an earlier refusal to extend time for appealing an order made by Master Price on 17 December 2018. The order followed an account and inquiry concerning trust property and resulted in no payment being due because the account was in deficit. The appellant's notice was filed on 20 May 2019, more than four months late.

Mr Lemas relied on the Christmas period, delay in obtaining transcripts, difficulty obtaining legal assistance and lack of funds. He also challenged aspects of the master's accounting decision, including the treatment of expenditure and a management allowance. The central issues were whether the delay was serious and significant, whether it had been adequately explained, and whether justice required an extension.

1. Application dismissed. The delay in filing the appellant's notice was both serious and significant. The applicable period was 21 days, and the delay until 20 May 2019 deprived the respondent of the finality to which he was entitled and created prejudice by reopening a concluded matter.
2. The court applied the principles in R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472. The court considered the seriousness and significance of the default, the explanation for it, and all the circumstances, including the proposed appeal's merits. The evidence did not establish a good explanation. The draft judgment and other necessary material were available early in January, and counsel had agreed on 10 January 2019 to prepare the appeal documents for an agreed fee. No reason was given for the failure to proceed after that date.
3. The court rejected the asserted explanations based on transcripts, funding and legal representation. The Christmas period did not account for the subsequent delay. The possible threat of bankruptcy did not justify reopening the matter out of time.
4. The proposed grounds of appeal were generally weak. Challenges to the master's assessment of income and expenditure concerned matters of fact and evaluation for the trial judge. As to the management allowance, the master had directed himself by reference to Murad v Al-Saraj [2005] EWCA Civ 959 and Boardman v Phipps [1967] 2 AC 46. The court considered that the probable governing law was that stated in Boardman v Phipps. A possible double allowance point had not been tested and, even if arguable, concerned a much smaller sum.
5. Balancing the serious and unexplained delay, prejudice to the respondent and weak merits, the justice of the case required refusal of the extension.

The judgment records that, on 11 July 2019, the court refused an extension of time on the papers and indicated that permission to appeal would also have been refused on the merits. Mr Lemas sought an oral review of that decision. The oral renewal was dismissed.