F.G. Financing Limited & Anor. v Mykola Lagun

A first-instance court loses jurisdiction to extend the time for filing an appeal notice where no application for an extension was made at the hearing at which the decision was made, and that hearing was not adjourned. An earlier decision under materially different procedural rules does not assist. Where jurisdiction to continue interim relief in aid of arbitration is challenged under the Arbitration Act 1996, the court may direct a substantive hearing of the jurisdiction and construction issues, while requiring that hearing to be conducted proportionately and expeditiously.

The claimants sought to continue or discharge a worldwide freezing order obtained without notice in aid of contemplated arbitration proceedings. After a two-and-a-half-day hearing, the judge delivered judgment and made an order adjourning the application pending permission from the constituted arbitral tribunal, applying the requirements said to arise under section 44(4) of the Arbitration Act 1996. Both parties agreed to that course.

The claimants later applied to restore the freezing-order application and sought an extension of time to apply for permission to appeal against the earlier order. The issues were whether the court had jurisdiction to entertain the restoration application, whether it could extend the appeal time, and what directions should be given if restoration was not summarily dismissed.

1. Extension of time. The application was dismissed. CPR Rule 52.12(2) requires the appellant’s notice to be filed within the period directed by the lower court at the hearing at which the decision was made, or, absent such a direction, within 21 days of the decision, subject to the specified exceptions. The hearing had not been adjourned. Accordingly, the first-instance court had no jurisdiction to extend time because no application had been made at the relevant hearing.

2. The claimants’ reliance on Dalkia Utility Services PLC v. Celtech International Limited (No.2) was rejected. That decision concerned the materially different predecessor Rule 52.4(2)(a), under which the lower court could direct time without the present limitation tied to the hearing or an adjournment. It therefore provided no assistance on the current rule.

3. Restoration application. The court identified serious issues concerning its jurisdiction. These included the construction of the arbitration agreement, the meaning of “any competent judicial authority”, the application of section 44(4) of the Arbitration Act 1996, and the effect of Article 23.5 of the LCIA Rules after constitution of the tribunal.

4. Although the judge had real doubts about whether the court should determine those matters, he directed a full hearing rather than summarily dismissing the restoration application. The hearing was to be limited to half a day because a longer hearing would be wasteful and disproportionate. Evidence and any necessary supplementary skeleton arguments were directed, with the matter to be listed promptly.

First-instance decision. The judgment records no prior appellate decision in the present proceedings. The application for an extension of time to appeal was dismissed for want of jurisdiction; the restoration application was directed to a further hearing.