Refuels Limited v BIP Chemical Holdings Limited & Anor

The Court of Appeal refused an extension of time for a non-party (Refuels) to bring an appeal against findings of fact made by HHJ Cadwaller in the Circuit Commercial Court ([2021] EWHC 2590 (Ch)). The judge below had found, on the balance of probabilities, that Refuels had conspired with a former director of the target company to defraud Centec. The Court held that there was no jurisdictional bar to a non-party appeal but that the appellant had not shown good reason to extend the strict 21-day appeal period in CPR 52.12(2)(b) and CPR 52.15(2).

Applying the three-stage Denton/Hysaj test for relief for non-compliance, the court found the delay to be serious and unjustified: Refuels had known of the published judgment by October 2022 and waited over a year (and months after instructing solicitors) before filing the appellant's notice. The court rejected arguments based on Article 6 ECHR and common-law fairness as not being "very strong" in the circumstances because the allegations were pleaded in the underlying litigation, Refuels had been invited to give evidence but declined, the judgment had entered the public domain, and the findings had no direct legal effect on Refuels' rights in that litigation (they were primarily reputational).

This is an appeal from an application for permission to appeal by Refuels, a non-party to underlying warranty breach proceedings in which HHJ Cadwaller found that Refuels had conspired with a former director to defraud Centec. The underlying claim arose from breaches of warranties in a share purchase agreement; BIP alleged, inter alia, that Centec had been defrauded by its former director in conspiracy with Refuels. The trial judge accepted BIP's evidence and awarded damages subject to an agreed liability cap.

The procedural history: claim issued 7 January 2020; judgment at first instance delivered 9 September 2021 ([2021] EWHC 2590 (Ch)); a first application for permission to appeal by the defendant (Mrs Blundell) was refused by Carr LJ on 21 December 2021. Refuels, not a party to the original proceedings, discovered the published judgment in October 2022. It instructed solicitors in October 2023 and filed an Appellant's Notice on 15 December 2023 (issued 8 January 2024). Because the notice was filed more than two years after the judgment, Refuels required an extension of the 21-day time limit under CPR 52.12(2)(b) and CPR 52.15(2).

The Court framed the issues as (i) whether to grant an extension of time to a non-party seeking to challenge adverse factual findings; (ii) whether Article 6 ECHR or common-law fairness entitled Refuels to challenge findings made in proceedings to which it was not a party; and (iii) whether the Denton/Hysaj three-stage test for relief from sanction was satisfied. The court applied authorities including George Wimpey, Denton, Hysaj, Re W, Cie Noga and Gray v Boreh.

The court’s reasoning was:

• There is a discretion to permit non-parties to appeal but strict time limits apply and extensions require strong justification.
• Applying the Denton/Hysaj framework the delay was serious and significant because Refuels had actual knowledge of the published judgment by October 2022 yet waited over a year and months after instructing lawyers in October 2023 before filing. The explanation for delay (that the finding was a "non-issue" and Refuels was busy) was insufficient.
• Arguments based on Article 6 were not "very strong": Refuels had not identified a substantive domestic right that was directly decided by the judgment; the finding had no binding legal effect on Refuels (Hollington v F Hewthorn) and the allegations were pleaded and within the scope of the trial. Re W and similar authorities were distinguishable because in those cases the findings were extraneous or the subjects had given evidence; here the pleaded allegation was part of the case and Refuels had been invited to give a witness statement but declined.
• Common-law fairness arguments did not overcome the significant delay and procedural finality and public-interest considerations. Permitting the appeal would risk satellite litigation and undermine finality in commercial litigation unless there are compelling reasons.

The court therefore refused the extension of time and the application for permission to appeal.

The Court of Appeal refused the extension of time and therefore refused permission to appeal. The court exercised its discretion against extending the 21-day appeal period because the applicant (a non-party) had knowledge of the published judgment well over a year before filing, gave an inadequate explanation for delay, and failed to show that its Article 6 or common-law fairness arguments were sufficiently strong to justify relief. The court emphasised the importance of finality, compliance with CPR time limits, and the exceptional nature of permitting non-party appeals that would produce satellite litigation.

Appeal from HHJ Cadwaller, Circuit Commercial Court, Business and Property Courts in Manchester: judgment 9 September 2021 ([2021] EWHC 2590 (Ch)). An earlier application for permission to appeal by the defendant was refused by Carr LJ on 21 December 2021. Refuels (a non-party) filed an Appellant's Notice on 15 December 2023 (issued 8 January 2024). This Court (Lewison LJ, Arnold LJ, Popplewell LJ) refused the extension of time and permission to appeal on 13 December 2024 ([2024] EWCA Civ 1563).