Know when to apply for permission to appeal to the Court of Appeal: time runs from when judgment is handed down, not when the lower court refuses permission

A recent Court of Appeal decision clarifies the rules on applying for permission to appeal to the Court of Appeal - which, the court noted, are often not properly understood by would-be appellants: McDonald v Rose [2019] EWCA Civ 4.

The decision underlines the important practical point that the 21 day time limit for applying for permission runs from the date of the decision to be appealed - which, in the case of a reserved judgment, is the date it was formally handed down. Time does not run from the date the lower court's order is sealed or (where the party has first applied to the lower court for permission, as is usual) the date the lower court refuses permission to appeal.

If a party wants more time to file its application with the Court of Appeal, it must seek an extension of time from the trial judge, either when the judgment is handed down or when requesting an adjournment of the hand-down hearing (so as to give it more time to apply to the lower court for permission). An adjournment in itself will not extend time.

It is possible to apply to the Court of Appeal to extend time retrospectively, but this is treated as an application for relief from sanctions and therefore the three-stage test from Denton v TH White Ltd [2014] EWCA Civ 906 (considered here) will apply.

Background

CPR 52.3(2) provides that an application for permission to appeal may be made: to the lower court at the hearing at which the decision to be appealed was made; or to the appeal court in an appeal notice.

Under CPR 52.12(2), the appeal notice must be filed within 21 days after the date of the decision of the lower court which the appellant wishes to appeal - or such longer or shorter period as may be directed by the lower court.

The underlying claims in the present case arose out of a dispute between siblings in relation to the distribution of their parents' estate. The trial was heard at the Business and Property Court in Cardiff. In accordance with the usual practice, the judge circulated a draft judgment to the parties and notified them that the judgment would be handed down two days later, on 9 March 2018, and that their attendance at court was not required.

The applicant's solicitors wrote to the court on 8 March to say that their client was considering seeking permission to appeal and asked the judge to adjourn the hearing the next day to enable their client to make that application. They did not seek any extension of the default 21 day time limit for filing an appeal notice with the Court of Appeal.

The court notified the parties that the application for permission had been adjourned for 14 days from 9 March and was to be dealt with by way of written submissions. The parties filed their written submissions on 23 March and, on 18 April, the judge refused permission to appeal.

The applicant filed his appellant's notice on 9 May, ie 21 days after the judge's decision on the permission application. He subsequently applied to extend the 21 day time limit retrospectively.

Decision

The Court of Appeal (Underhill, Richards and Coulson LJJ) confirmed that the appeal notice was filed out of time. It said this would have been a borderline case as to whether time should be extended, but in any event refused permission on the basis that the appeal would have no real prospect of success.

Before addressing the facts of the case, the court noted that its experience was that the rules on seeking permission to appeal were often not properly understood by would-be appellants. It therefore summarised the effect of the relevant authorities and the procedure that should be followed, including the following points:

1. Time begins to run under CPR 52.12 on the date of the hearing at which the decision is given, which may be ex tempore or by the formal hand-down of a reserved judgment.
2. A party who wishes to apply to the lower court for permission to appeal should normally do so at the decision hearing itself. Where the judgment is to be handed down and counsel have been excused from attending, that can be done by applying in writing before the hearing.
3. If (exceptionally) a party is not ready to make an application at the decision hearing, it must ask for the hearing to be adjourned to give it more time to do so. The judge will then set a timetable for written submissions and will normally decide the question on the papers without the need for a further hearing.
4. If no permission application is made at the original decision hearing, and there has been no adjournment, the lower court is no longer seized of the matter and cannot consider any retrospective application for permission to appeal.
5. Whenever a party seeks an adjournment of the decision hearing they should also seek an extension of time to file the appeal notice. Otherwise they risk running out of time before the permission decision is made. An adjournment of the decision hearing does not automatically extend time.

The court also noted (although the point was not addressed in the authorities considered by the court) that, if the judge announces his or her decision with reasons to follow, that too will start time running. In those circumstances it should be standard practice for the court to adjourn the decision hearing and extend time for filing the appeal notice until a specified period after the reasons are given.

In the present case, the Court of Appeal noted that, by the time of the hearing, the applicant's counsel had accepted that the appeal notice was filed out of time, as the 21 day time limit began to run when the judgment was handed down on 9 March. The court said he was right to do so.

As to whether the court should extend time, it was common ground that the application for a retrospective extension was an application for relief from sanctions (see R (Hysaj) v SoS for the Home Department [2014] EWCA Civ 1633, considered here). Accordingly, the Denton three-stage test applied, namely:

1. the seriousness and the significance of the failure to comply with the rules;
2. why the default occurred;
3. an evaluation of all the circumstances of the case, so as to enable the court to deal justly with the application.

In this case the court noted that the failure was serious and relatively significant, and there was no good reason for it. On a consideration of all the circumstances, it would have been a borderline case for relief. However, because of how the case was listed, the court was in a position to consider the merits of the application for permission to appeal more fully than would normally be appropriate. It concluded that the appeal would have no real prospect of success in any event, and therefore it did not need to reach a definitive view on the question of an extension.