Peter Gaisiance v Mayor & Burgess of London Borough of Southwark

An extension of time to appeal requires a proper explanation for the whole period of delay. Where a civil restraint order has expired, reliance on the former requirement for permission cannot justify failing to file an appeal. A litigant must proceed with the available appellate route.

Fresh evidence will not ordinarily be admitted where it could have been obtained and relied on below, or where it would be unlikely to influence the decision. Permission to appeal should be refused where the proposed grounds disclose no real prospect of success.

The applicant sought renewed permission to appeal against an order of His Honour Judge Luba KC dated 26 August 2022. The lower court had refused an extension of time and struck out an intended appeal against a County Court order dated 22 January 2020.

The applicant argued that delay resulted from an earlier civil restraint order, difficulties communicating with the High Court and the courts’ operation during lockdown. He also sought to rely on documents concerning his detention under the Mental Health Act 1983. The central issues were whether the delay was properly explained, whether fresh evidence could be admitted, and whether the proposed appeal had a real prospect of success.

1. The renewed application for permission to appeal was refused and the appeal was dismissed.
2. The applicant’s January 2022 Appellant’s Notice concerned the County Court order of 22 January 2020. Any earlier document sent to the High Court could only have engaged the High Court’s permission jurisdiction under the civil restraint order; it could not itself constitute a valid appeal to the High Court.
3. The civil restraint order expired on 4 July 2020. Once the applicant’s papers were returned in March 2021, there was no continuing restriction preventing him from filing in the County Court. His decision to await an explanation from the High Court was therefore misguided and did not explain the substantial subsequent delay.
4. The County Court remained operational during lockdown, and the applicant had not shown that communication difficulties prevented him from filing by post or DX.
5. The documents concerning mental health detention did not satisfy the test in Ladd v Marshall 1954 EWCA Civ 1. They could have been obtained and relied on below and were unlikely to influence the decision because they did not explain the material period of delay.
6. The lower judge’s decision was sound on the evidence and the proposed grounds had no real prospect of success.

• High Court (King’s Bench Division): renewed application for permission to appeal refused and appeal dismissed.
• County Court: His Honour Judge Luba KC refused an extension of time and struck out the Appellant’s Notice on 26 August 2022.
• High Court: an earlier paper application for permission was refused by Sir Stephen Stewart on 2 December 2022.