De Sena & Anor v Notaro & Ors

Under CPR 52.3, an application for permission to appeal to the lower court should ordinarily be made at the hearing at which the decision is given. Where a reserved judgment is formally handed down without an adjournment for that purpose, the lower court is no longer seised of the matter and cannot entertain a later retrospective application for permission. The party must apply to the appeal court and, where the time for filing the appellant’s notice has expired, seek relief from sanctions. An extension of time for making a permission application does not itself extend the time for filing the appellant’s notice. Even if jurisdiction exists, permission should be refused where the proposed appeal has no real prospect of success and there is no other compelling reason for it.

The claimants’ substantive claims had been dismissed by a judgment handed down on 1 May 2020. They applied on 22 May 2020 for an extension of time to apply for permission to appeal. No application had been made before or at the formal hand-down hearing to adjourn it, seek permission to appeal, or extend time for filing an appellant’s notice.

The application was opposed on the basis that the trial judge was no longer seised of the matter and that the claimants were out of time to apply to the Court of Appeal. The claimants later supplied grounds directed only to the undue influence claim against the first and second defendants. The central issues were whether the judge had jurisdiction to entertain the application and, alternatively, whether permission to appeal should be granted.

1. Application dismissed. The formal hand-down on 1 May 2020 was the decision hearing. No application had been made to adjourn that hearing to enable an application for permission to appeal or an extension of time.
2. Applying the principles summarised in McDonald v Rose [2019] 1 WLR 2828, the lower court is normally approached for permission at the decision hearing. If the hearing has not been adjourned and no permission application was made, the lower court is no longer seised of the matter. It cannot consider a retrospective application for permission. The Court of Appeal must deal with the matter.
3. The 21-day period for filing an appellant’s notice runs from the date of the decision unless the lower court has directed another period. An adjournment of the permission application does not automatically extend that period. The claimants were therefore out of time and would need relief from sanctions before the Court of Appeal could consider permission.
4. Alternatively, if the judge had jurisdiction, permission would still have been refused. Six proposed grounds challenged factual findings, against which an appeal is materially more difficult. The two legal grounds disclosed no real prospect of success because the judge had applied the relevant authorities, which were binding or should be followed unless shown to be wrong. There was no other compelling reason for an appeal.
5. The judge also recorded that the substantive findings included no improper or illegitimate pressure, no disposal of shares at an undervalue, affirmation of the transaction, and a bar by laches. The application dated 22 May 2020 was dismissed.