Refuels Limited v BIP Chemical Holdings Limited & Anor

A non-party may in principle be permitted to appeal, but must comply with the 21-day time limit in the Civil Procedure Rules 1998 or obtain an extension. The extension application is governed by the three-stage test in Denton v TH White Ltd [2014] EWCA Civ 906. The public interest in finality, the reason for delay and promptness are important. The merits ordinarily have little weight unless the proposed appeal is obviously very strong or very weak without detailed investigation. A finding made against a non-party does not itself engage article 6 or create an appellate right where the person is not bound by the judgment and suffers only reputational consequences. A judge may determine pleaded allegations involving an absent person where the circumstances provide a fair opportunity to respond.

The appeal arose from a share-sale warranty claim brought by BIP Chemical Holdings Limited against Mrs Blundell. In [2021] EWHC 2590 (Ch), HHJ Cadwallader found that Refuels Limited had defrauded Centec International Ltd in conspiracy with a former director. Refuels was not a party to that litigation and did not seek to alter the judgment sum because contractual liability was capped.

Refuels discovered the judgment more than a year after it was given and later sought permission to appeal the adverse finding. Its appellant’s notice was filed more than two years after judgment. The central issue was whether the Court of Appeal should extend time for a non-party to challenge the finding on grounds of procedural unfairness, article 6, and common-law fairness.

The application for an extension of time was refused. The proposed appeal could not proceed because Refuels’ appellant’s notice was filed outside the 21-day period and the circumstances did not justify relief.

1. The court had jurisdiction to permit a non-party to appeal, following George Wimpey UK Ltd v Tewkesbury Borough Council [2008] EWCA Civ 12. That did not remove the need for an extension of time under the Civil Procedure Rules 1998.
2. The court applied the three-stage Denton test: the seriousness and significance of the default; the reason for it; and all the circumstances, giving particular weight to the first two stages. The public interest in finality and compliance with procedural rules was important. The delay was serious. Although Refuels initially lacked knowledge of the judgment, it knew of it by October 2022, regarded the finding as a non-issue, and waited more than a year before taking advice. That was a conscious decision rather than a satisfactory reason for delay.
3. The merits had little part to play. Under R (Hysaj) v SSHD [2014] EWCA Civ 1633 and Bangs v FM Conway Ltd [2024] EWCA Civ 1461, merits matter only where the grounds are readily shown to be very strong or very weak, with the strong case threshold no less demanding than summary judgment. The proposed grounds did not meet that standard.
4. Article 6 could not create a substantive domestic-law right. Refuels identified no such right, and the judgment was neither binding on it nor probative in later proceedings: Hollington v F Hewthorn & Co Ltd [1943] KB 587. The finding had reputational, rather than direct legal, consequences.
5. The common-law fairness argument also lacked sufficient merit. The fraud allegation had been pleaded, the judge had a duty to determine the pleaded issues, and Mr Taylor had repeatedly been invited to provide evidence but declined. The materially different authorities involving extraneous, unpleaded or unnecessary findings against non-parties were distinguished. Any jurisdiction to entertain such an appeal was exceptional and required compelling reasons.

1. Court of Appeal (Civil Division): refused Refuels’ application for an extension of time to appeal from the judgment below.
2. Business and Property Courts in Manchester, Circuit Commercial Court: HHJ Cadwallader, sitting as a High Court judge, gave judgment on 9 September 2021 in [2021] EWHC 2590 (Ch), awarding damages to BIP for breach of warranty and finding that Refuels had participated in a fraud.