Tyburn Film Productions Ltd v British Telecommunications PLC

On an application to set aside an order made without hearing from the parties, the court conducts a rehearing directed to whether the order was appropriate when made. An application to vary such an order ordinarily remains directed to that question.

The Denton relief-from-sanctions test applies to an underlying breach only where the rules impose an implied sanction. A party who makes an in-time application for an extension of time is not subject to such an implied sanction merely because the application is later unsuccessful. Where an unless order is not sent to the party, it is unjust to refuse relief from the sanction in that order. The court should instead exercise its general power to extend time, having regard to the overriding objective.

Tyburn appealed against an order of HHJ Melissa Clarke refusing to set aside an unless order and refusing relief from sanctions. The unless order required grounds of appeal to be filed by 28 August 2018, failing which permission to appeal would be refused and the appeal dismissed. Because of a court error, Tyburn did not receive it until March 2019.

Tyburn had filed an appellant’s notice without grounds of appeal but had applied in time for an extension linked to receipt of the judgment transcript. Grounds were eventually filed on 4 January 2019. The central issues were whether the unless order should be set aside, whether the Denton test applied, and whether time should retrospectively be extended.

1. Set-aside application. The judge correctly treated the application to set aside as a rehearing. The relevant question was whether the unless order should have been made in the first place, not whether later events made it inappropriate. The judge was entitled to find that the appellant’s notice breached paragraph 4.2(d) of Practice Direction 52B and to give Tyburn a final opportunity to remedy that defect. The appeal on this issue was dismissed.
2. Relief from sanctions. The three-stage approach in Denton v TH White Ltd requires consideration of all the circumstances at the third stage. A good reason for non-compliance normally favours relief, but the strength of that reason remains relevant. The underlying breach may also be considered at the third stage where it gave rise to an unless order.
3. Applicable test. The court distinguished the situation from R. (Hysaj), where an out-of-time appeal carried an implied sanction. Tyburn had applied in time for an extension to file grounds. Following Mark v Universal Castings & Services Ltd, not every mandatory procedural requirement necessarily carries an implied sanction. The Denton test therefore did not apply to the underlying breach.
4. Discretion. Under CPR rule 3.1(2)(a), the court could extend time retrospectively, subject to the overriding objective. The failure to send the unless order, the time taken to obtain the approved transcript, the evidence of Mr Francis’s illness, the absence of significant appeal delay before the grounds were filed, and the serious prejudice to Tyburn if it lost a potentially meritorious appeal outweighed the delay and BT’s interest in finality.
5. The court extended time for filing the grounds of appeal retrospectively to 4 January 2019. The appeal was therefore allowed in relation to relief from sanctions.

• County Court at Oxford: HHJ Melissa Clarke made the unless order on 13 August 2018 and, by order dated 9 July 2019, refused to set it aside and refused relief from sanctions.
• High Court (Chancery Division): The appeal was dismissed on the set-aside issue. The refusal of relief from sanctions was overturned, and time for filing grounds of appeal was extended retrospectively to 4 January 2019.