Binod Kumar Sharma v Edith Clara Maria Lovegrove

Permission to appeal should be refused where the proposed appeal has no real prospect of success and there is no other compelling reason for an appeal. In assessing an application to extend time for an out-of-time appeal, the court should consider the seriousness and significance of the delay, the reasons for it, and all the circumstances, including the merits. A discretionary decision may be overturned only for a material failure to take account of a relevant factor, reliance on an irrelevant factor, or a decision outside the range of reasonable responses.

The appellant sought permission to appeal an order of HHJ Hellman refusing to extend time for an application to appeal a November 2021 decision of DJ Brooks. DJ Brooks had refused relief from sanction after judgment was entered following the appellant’s late payment of his share of a joint expert’s fee under an unless order.

The appellant argued that DJ Brooks had misunderstood the extent of his non-compliance and that the delay should be excused. The central issue was whether HHJ Hellman’s refusal to extend time had a real prospect of being overturned, or whether there was some other compelling reason for an appeal.

1. Permission refused. The court had already refused permission on the papers and, after an oral hearing, confirmed that decision.

2. HHJ Hellman adopted the conventional three-stage approach to an application concerning delay in appealing: assess the seriousness and significance of the default, consider the reasons for it, and evaluate all the circumstances of the case.

3. The approximately one-year delay in filing the application for permission was serious and significant. A letter expressing an intention to appeal did not satisfy the requirement to serve an Appellant’s Notice within 21 days.

4. The reasons for delay were not good reasons. The availability of assistance, the failure to identify the error at the earlier hearing, confusion over transcripts, and counsel’s personal circumstances did not justify the continuing delay. Alternative steps could have been taken to progress the application.

5. The merits of the proposed appeal were strong because DJ Brooks had referred to continuing non-compliance when the default had been cured. However, HHJ Hellman had taken that factor into account alongside the seriousness of the delay and the absence of good reasons.

6. A discretionary decision can be overturned only if the judge failed to consider a material factor, relied on an irrelevant factor, or reached a decision outside the range of reasonable responses. None of those conditions applied.

7. Complaints concerning earlier hearings and Practice Direction 1A did not provide another compelling reason for an appeal. The application could not be used to reopen long-completed hearings or quash earlier decisions and costs orders.

• Chancery Appeals: Permission to appeal HHJ Hellman’s refusal to extend time was refused.
• HHJ Hellman: Refused to extend time for an out-of-time application to appeal DJ Brooks’s refusal of relief from sanction.
• DJ Brooks: Refused relief from sanction.
• DJ Cridge: Entered judgment following non-compliance with the unless order.