Microsoft Ireland Operations Limited & Ors v JJH Enterprises Limited (trading as ValueLicensing)

Where an appellant’s notice is filed electronically under the Electronic Working Pilot Scheme, it may be filed at any time up to midnight on the final day of the permitted period unless a rule, practice direction or case-specific order provides otherwise. Office hours do not apply merely because traditional filing methods were practically limited to those hours.

The Scheme’s unqualified provision for filing 24 hours a day supports that construction. A general provision in the Commercial Court Guide fixing 4.30 p.m. as the latest time for compliance does not alter an order which merely extends the period for filing an appellant’s notice and does not order that act to be done by a specified date.

Microsoft appealed from orders made by Picken J in Commercial Court proceedings brought by JJH Enterprises Ltd, trading as ValueLicensing. On 14 April 2022 the judge dismissed Microsoft’s applications for strike-out, summary judgment and a stay on forum non conveniens grounds, and extended the time for filing an appellant’s notice until 21 days after the relevant permission-to-appeal deadline or determination.

Permission to appeal was refused on 8 July 2022. Meanwhile, Microsoft filed its appellant’s notice electronically at 4.52 p.m. on 6 June 2022. A Master declared it filed in time. ValueLicensing sought review under CPR 52.24(5). The central issue was whether electronic filing had to occur by 4.30 p.m. or remained effective until midnight on the final day.

1. Review dismissed. The Court of Appeal upheld the Master’s decision that Microsoft’s appellant’s notice was filed in time.
2. CPR 52.12(2) defines the default filing period by reference to days and contains no time-of-day limitation. A lower court may direct a different period, including a specified time, but Picken J’s order merely extended time and did not impose a time by which filing had to occur.
3. Before the Electronic Working Pilot Scheme, the Rules and Practice Directions contained no general requirement that traditional filing occur during office hours. Van Aken v Camden London Borough Council [2002] EWCA 1724; [2003] 1 WLR 684 confirmed that filing involved delivery to the court office and did not require a step by court staff. The practical position differed where a court office lacked an out-of-hours post-box, as illustrated by Yadly Marketing Co Ltd v Secretary of State for the Home Department [2016] EWCA Civ 1143; [2017] 1 WLR 1041.
4. When fax and e-mail filing were introduced, express provisions limited deemed receipt to office-hours rules. PD 51O contains no equivalent restriction. Its statement that electronic working enables parties to issue proceedings and file documents 24 hours a day, including outside normal office hours, would reasonably be understood as effective for all purposes, including expiry of a time limit, subject to a contrary case-specific order.
5. The Commercial Court Guide provision fixing 4.30 p.m. as the latest time for compliance did not apply. Picken J’s order did not order an act to be done by a certain date; it extended the period within which Microsoft might file an appellant’s notice. The requirements to state a time of day where practicable and to record the date and time of filing did not produce a different result.

• Commercial Court: On 14 April 2022 Picken J dismissed Microsoft’s strike-out, summary judgment and forum non conveniens applications and extended the time for filing an appellant’s notice.
• Court of Appeal: A Master declared the appellant’s notice filed in time. On review under CPR 52.24(5), the Court of Appeal upheld that decision.