CPR r.3.9 rears its growling head again…but a more robust approach, nevertheless, should not be taken as encouragement to refuse reasonable extensions of time or to seek tactical advantage in every minor default.
The Court of Appeal has ruled that extensions of time to file notices of appeal under CPR r.3.1(2)(a) had to be determined using the principles governing applications for relief from sanctions under CPR r.3.9. Where a case involves questions of public law or litigants in person or parties who could not afford legal representation, there was no justification for a more lenient approach. In such circumstances, the merits of the substantive appeal would have little relevance in deciding whether to extend time.
- Public authorities have a responsibility to adhere to the rules just as much as other litigants.
- The mere fact of being unrepresented did not provide a good reason for not adhering to the rules.
- The CPR is available free on line on the website of the MoJ and to that extent are widely available.
- The importance of the issues to the public at large was a factor that the court could properly take into account when it came to evaluating the circumstances of the case.
- In most cases the merits of the appeal, however, would have little to do with whether it was appropriate to grant an extension of time.
- Courts are to exercise their discretion in relation to costs robustly in order to discourage unnecessary satellite litigation.
H, B and R wished to appeal against three separate and unrelated decisions. Each of them had failed to file a notice of appeal within the time prescribed by CPR r.52.4(2). Their applications had been heard together so that the court could give guidance on the approach to be taken to applications for extensions of time for filing notices of appeal. The issue was whether such applications were sufficiently analogous to applications for relief from sanctions to be treated in the same way, so that the principles set out in Mitchell v News Group Newspapers Ltd  EWCA Civ 1537 and Denton v TH White Ltd  EWCA Civ 906 should apply.
The Court of Appeal’s Musings
The facts of the individual cases are outlined at paragraphs 2 – 20 of the Judgment.
Lord Justice Moore-Bick, giving the leading Judgment, disagreed with the submission for the appellant in the first action that r.52.4(2) was “a trap for the unwary” – the position was clear and had been since the CPR came into effect in April 1999. He stated that it is “the responsibility of practitioners to make themselves familiar with the provisions of the CPR and to comply with them” (paragraph 22).
Further, having reviewed relevant case-law, he noted that “[w]hatever one may think of the doctrine of implied sanctions….the approach to be taken to applications of the kind now under consideration is now too well established to be overturned” (paragraph 36).
Lord Justice Moore-Bick considered questions of general relevance at paragraphs 40 – 48 of the Judgment, namely public law cases, shortage of funds, litigants in person and the merits of the case. Although he commented on the availability of the CPR online, he stated that the ordinary person required guidance in discovering and understanding the rules and how proceedings are to be conducted. Such assistance would “become essential if the administration of justice is not to be undermined” (paragraph 45) as the numbers of litigants in person increases.
Lord Justice Tomlinson and Lady Justice King agreed with the leading Judgment.
1. Applications for extensions of time under r.3.1(2)(a) were not formally applications for relief from sanctions under r.3.9. CPR r.52.6, regarding variations of time, made no reference to the principles on which the court’s power to extend or shorten the time for compliance under r.3.1(2)(a) would be exercised. That would depend on the circumstances of the individual case. However, it was well established that an application for permission to appeal out of time was analogous to an application under r.3.9. A person who was out of time for filing a notice of appeal was subject to an implied sanction.
The approach in Mitchell and Denton therefore had to apply.
2. Public authorities had a responsibility to adhere to the rules just as much as other litigants. However, the importance of the issues to the public at large was a factor that the court could properly take into account when it came to evaluating the circumstances of the case.
A more robust approach, nevertheless, should not be taken as encouragement to refuse reasonable extensions of time or to seek tactical advantage in every minor default. The court had the power to express its disapproval, and robustly so, of such action by an award of costs in order to discourage inappropriate satellite litigation.
The mere fact of being unrepresented/the inability to pay for legal representation did not provide a good reason for not adhering to the rules.
In most cases the merits of the appeal would have little to do with whether it was appropriate to grant an extension of time.
3. Applying the guidance set out in Mitchell and Denton and the considerations discussed in the instant case, it was appropriate to grant the extension of time sought by H, but not by B and R.
Click here for this Judgment
Click here for CPR r.3.1(2)(a); r.3.9; and, r.52.4(2)
Click: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1537.html for Mitchell Judgment
Click: http://www.bailii.org/ew/cases/EWCA/Civ/2014/906.html for Denton Judgment
17th December 2014