APPLICATIONS TO EXTEND TIME TO SERVE A RESPONDENT’S NOTICE – MITCHELL PRINCIPLES APPLY

PI_Bronia_Hartley By Bronia Hartley

Altomart Ltd v Salford Estates (No.2) Ltd [2014] EWCA Civ 1408

Under CPR r.52.5(4) and (5), a respondent who is seeking permission to appeal from the appeal court or wishes to ask the appeal court to uphold the order of the lower court for reasons different from or additional to those given by the lower court must file a respondent’s notice within such period as may be directed by the lower court, or where the court makes no such direction, 14 days after-

  1. the date the respondent is served with the appellant’s notice where (i) permission to appeal was given by the lower court; or (ii) permission to appeal is not required;
  2. the date the respondent is served with notification that the appeal court has given the appellant permission to appeal; or
  3. the date the respondent is served with notification that the application for permission to appeal and the appeal itself will be heard together.

In Altomart Ltd v Salford Estates (No.2) Ltd [2014] EWCA Civ 1408 the Court of Appeal considered the approach to be adopted to applications under CPR r.3.1(2)(a) for an extension of time to serve a respondent’s notice in light of the decision in Mitchell.

The Court of Appeal held:

  • rule 3.9 does not apply in cases where there is an application for an extension of time to serve a respondent’s notice. Such applications are governed by r.3.2;
  • however, the courts have recognised the existence of implied sanctions capable of engaging the approach contained in r.3.9;
  • an application for permission to appeal out of time is analogous to an application under r.3.9 and was therefore to be decided in accordance with the same principles;
  • preventing a respondent from pursuing the merits of a case on appeal was no more or less of an implied sanction than preventing an appellant from pursuing an appeal;
  • The Mitchell principles therefore apply with equal force to an application for an extension of time in which to file a respondent’s notice.

In Altomart the respondent’s notice was issued 36 days late, however this considerable delay was not likely to effect proceedings.  As such the delay could not properly be regarded as a serious or significant breach of the rules.  The respondent accepted that it should bear the costs occasioned by its need to seek the court’s indulgence, and there was nothing else in its conduct of the proceedings or more generally that militated against the granting of relief. Mitchell and Denton applied.  Application granted.

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2 comments

  1. […] Bronia Hartley continued with the same theme in Applications to extend time to service a respondent’s notice – Mitchell principles apply […]

  2. […] Bronia Hartley of Zenith Chambers writes on Applications to extend time to serve a respondent’s notice – Mitchell principles apply […]

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