Appeal — Extension of time — Appellant failing to apply for time extension in appeal notice — Whether possible to waive procedural irregularity under CPR 3.10 — Appeal allowed
The appellant brought an application to set aside a suspended possession order made against her in favour of the respondent. The district judge dismissed the application, but granted permission to counterclaim on a limited basis. The appellant later sought to appeal out of time against the district judge’s order; however, her appeal notice failed to mention any application for an extension of time.
Permission to appeal was granted at an oral hearing, the judge holding that it could not be said that the appeal had no real prospect of success. The fact that the application was eight months out of time was apparently overlooked.
At the substantive appeal hearing, the judge took, of his own motion, the point that a time extension had never been sought, and dismissed the appeal. He referred in his judgment to: (i) CPR 52.4(2), which required an appellant to file an appellant’s notice at the appeal court within 14 days of the relevant decision of the lower court; (ii) CPR 52.6, which provided that an application to vary the time limit for filing an appeal notice had to be made to the appeal court; (iii) CPR 52 PD 5.2, which provided that if an appellant required an extension of time for filing his notice, that application had to be made in the notice; and (iv) Sayers v Clarke Walker [2002] EWCA Civ 645; [2002] 1 WLR 3095, which determined that if an application for an extension of time were made after the original prescribed time for appealing had expired, the court should, in cases of any complexity, follow the checklist in CPR 3.9 when deciding whether to exercise its discretion to grant an extension. He noted that, in the present case, an extension had not been sought in the appeal notice, that no evidence existed to support the application for relief, as required by CPR 3.9, and that the appeal was therefore bound to fail, despite the apparent force in the appellant’s arguments on the merits.
The appellant appealed that decision. She contended that her case was covered by CPR 3.10, which enabled the court to overlook a procedural irregularity where the justice of the case so required.
Held: The appeal was allowed.
The judge had clearly been wrong to hold that he had no power to overlook the irregularity pursuant to CPR 3.10. He had already concluded that the appeal had potential merit, and CPR 3.10 unquestionably gave him power to allow the appellant permission to amend her notice of appeal, so as to include an application for an extension of time, and to waive the requirement for evidence if he considered it just to do so. The judge could have mitigated any potential injustice to the respondent by imposing a condition pursuant to CPR 3.1(2)(a) when allowing the appeal: Price v Price (t/a Poppyland Headware) [2003] EWCA Civ 888; [2003] 3 All ER 911, Beck v Ministry of Defence [2003] EWCA Civ 1043; (2003) 100(31) LSG 31 and Lloyd Jones v T-Mobile (UK) Ltd [2003] EWCA Civ 1162; [2003] PLSCS 200 considered. The appeal would be allowed, and the appellant would be permitted to amend her notice of appeal by adding an application for an extension of time.
Bradley Say (instructed by Lonsdales) appeared for the appellant; Gabriel Fadipe (instructed by Graham Harvey) appeared for the respondent.
Sally Dobson, barrister
