Court of Appeal decision underlines dangers of delay in filing notice of appeal

The Court of Appeal has confirmed that the courts will apply the same rigorous approach to a retrospective application to extend time for filing a notice of appeal as they do to an application for relief from sanctions: R (Dinjan Hysaj) v SoS for the Home Department; Fathollahipour v Aliabadibenisi; May v Robinson [2014] EWCA Civ 1633. The guidance set out in the high-profile Mitchell case, as clarified in the subsequent Denton judgment (see post), therefore applies.

The reasoning is that a party who is out of time for filing a notice of appeal is subject to an implied sanction, namely the loss of the right to pursue an appeal. Accordingly, an application for an extension of time is analogous to an application for relief from sanctions. The court reached its conclusion somewhat reluctantly, saying it did not consider any other course open to it in light of the Court of Appeal's previous decision in Sayers v Clarke Walker [2002] EWCA Civ 645 which had been consistently understood as equating the two types of application.

The decision also acts as a reminder that the 21 day time limit for filing a notice of appeal with the appeal court runs from the date on which the lower court pronounces its decision, not when the order reflecting that decision is drawn up or sealed (which may be some days later). The time limit is not extended by an application to the lower court for permission to appeal, or an adjournment of that application, or the timing of the lower court's determination of the application. Although the Court of Appeal did not agree that this was a "trap for the unwary", it is certainly something that can trip up those less familiar with the rules. 

Background

Three cases were heard together so that the court could give guidance on the proper approach to out-of-time applications to extend time for filing a notice of appeal, and in particular whether the court should apply CPR 3.9 on relief from sanctions and the guidance set down in by the Court of Appeal in Mitchell and Denton. The facts of the three cases are not important, save that in each case the applicant failed to file an appellant's notice within the relevant time limit.

Where permission to appeal is not granted by the lower court, a party that wishes to appeal applies for permission by filing an appellant's notice with the appeal court. CPR 54.4(2) provides that  the appellant's notice must be filed within –

• (a) such period as may be directed by the lower court ... or
• (b) where the court makes no such direction, 21 days after the date of the decision of the lower court that the appellant wishes to appeal.

In its 2002 decision in Sayers v Clarke Walker, the Court of Appeal considered that out-of-time applications for an extension of time to file an appellant's notice were analogous to applications for relief from sanctions; unless time was extended there was an implied sanction, namely that the applicant could not appeal. Therefore the court had to consider the factors set out in CPR 3.9 in reaching its decision.

In contrast, in Attorney General of Trinidad & Tobago v Matthews [2011] UKPC 38 the Privy Council considered whether a defendant who missed the time limit for filing a defence needed relief from sanction (under the equivalent provisions in the Civil Procedure Rules of Trinidad & Tobago). It rejected the argument that there was an implied sanction from which the defendant needed relief.

Decision

Moore-Bick LJ (who gave the lead judgment, with which Tomlinson and King LJJ agreed) said he had considerable sympathy with the argument that where there is no express sanction implied by the rule, there is no need to make an application under CPR 3.9 and an application for extension of time is not, and should not be treated as if it were, an application for relief from sanction.

However, as the authorities he reviewed demonstrated, for the past 12 years it had been consistently understood that the Court of Appeal in Sayers v Clarke Walker deliberately equated applications for extensions of time for filing a notice of appeal with applications for relief from sanctions because the implied sanction of the loss of a right to appeal meant the two were analogous. This included Moore-Bick LJ's own decision in Altomart Limited v Salford Estates (No. 2) Limited) [2014] EWCA Civ 1408, which applied the same reasoning to a retrospective application to extend time for a respondent’s notice (see post under the heading "Implied sanctions"). He continued:

"Whatever one may think of the doctrine of implied sanctions, therefore, particularly in the light of the views expressed by the Privy Council in Matthews, I think that the approach to be taken to applications of the kind now under consideration is now too well established to be overturned. It follows that in my view the principles to be derived from Mitchell and Denton do apply to these applications."

Again however, as with the Altomart decision, what remains unclear is precisely when the court will consider there to be an "implied sanction" such that the proper approach is to apply CPR 3.9 and the Mitchell / Denton guidance. The comment quoted above could be taken to imply that this approach is well established in the case of a late application for an extension of time to file an appellant's notice, but that it is open to question in other scenarios. Alternatively, the reference to "applications of the kind now under consideration" could be read more broadly to include other cases of implied sanction, and of course Moore-Bick LJ's own decision in Altomart extended the reasoning to a respondent's notice. It seems the position may be left to be tested piecemeal.

The Court of Appeal went on to consider in each of the three appeals whether an extension should be granted, applying the Mitchell / Denton guidance. It is interesting to note that the court did not consider a shortage of funds or the fact that a party is unrepresented to be good reasons for failing to comply with the rules. Similarly, a misunderstanding of the time limit for filing the notice was not good reason; Moore-Bick LJ commented: "Ignorance of the rules will rarely, if ever, provide a good reason for failing to comply with them, especially where professionals are involved."