Claydon Yield-O-Meter Ltd v Mzuri Ltd & Ors (Rev 1)

A judgment handed down remotely under the Covid-19 Protocol is a hearing for the purposes of applying for permission to appeal. The relevant hearing is the hearing at which the judgment is handed down, even where attendance is excused and consequential matters remain outstanding. A later application is permissible only if that hearing was formally adjourned for the purpose. The parties’ expectation of a further hearing, or the absence of the procedural mischief addressed by the rule, does not establish an adjournment. The 21-day period for filing an appellant’s notice runs from the date of hand-down. Any retrospective extension of that period must be sought from the appeal court.

The claimant’s patent infringement claim had been dismissed in a judgment handed down on 22 April 2021. No application for permission to appeal was made at that hand-down, and no order formally adjourning the decision hearing or extending time was sought. The claimant later sought permission to appeal concerning the validity of one patent. The defendants argued that the lower court no longer had jurisdiction under CPR 52.3(2)(a), and that the 21-day period under CPR 52.12(2)(b) had expired. The central issues were whether remote hand-down constituted the relevant hearing, whether the hearing had been adjourned by implication, and which court could extend time.

1. The application for permission to appeal was refused. The court had no jurisdiction to entertain it.

2. Under CPR 52.3(2)(a), the hearing at which the decision to be appealed was made is the hearing at which the judgment is handed down. This remains so where judgment is handed down remotely under the Covid-19 Protocol and the parties are not required to attend. Remote hand-down is not materially different from hand-down in open court.

3. A decision hearing may be adjourned to enable an application for permission to appeal, but the adjournment must be formally made by the court following an application by a party. The fact that the court anticipated consequential submissions, or that a further hearing might become necessary, does not support a necessary inference of adjournment.

4. The court adopted and applied the procedural summary in McDonald v Rose [2019] EWCA Civ 4. If no permission application is made at the original decision hearing and there has been no formal adjournment, the lower court is no longer seized of the matter. The court also rejected the submission that the rule’s underlying mischiefs determined compliance.

5. The 21-day period for filing an appellant’s notice runs from the date of hand-down. An adjournment does not automatically extend that period. Any retrospective application to vary the time limit must be made to the Court of Appeal under CPR 52.15(1).

This was a consequential ruling following the dismissal of the claimant’s patent infringement claim in the same court’s judgment handed down on 22 April 2021. The present court refused permission to appeal because no application had been made at the decision hearing and no formal adjournment or extension of time had been ordered.