Appeal – Practice – Appellants applying for extension of time to appeal – Whether appellants establishing exceptional case justifying extension of time – Application dismissed
The appellants applied for an extension of time to appeal against a decision of the VAT and Duties Tribunal. The relevant time limit for such an appeal was imposed by para 23.8(2)(b) of r 52PD of the Civil Procedure Rules 1998 (SI 1998/3132), which specified a period of 56 days after the date of the decision or other determination.
An issue arose as to the relevant date of the decision to be appealed, which was either 21 July 2006 or 13 September 2006. The appeal notice was dated 30 March 2007. The appeal had therefore been brought outside the relevant period of 56 days, irrespective of which date was correct. However, the appellants argued that the court should look at the history of the matter and assess the position on the basis that the appellants had delayed bringing the appeal until 30 March 2007 in respect of the decision of 13 September 2006, rather than the decision of 21 July 2006.
The appellants submitted that, although the tribunal had released a decision on 21 July 2006, they had made a further decision on 13 September 2006 that had superseded the July decision. They wished to appeal the September decision for which time began to run from 13 September and, since they had not received the September decision until 2 February 2007, they had filed their notice on 30 March 2007, which was the 56th day after 2 February 2007. They should, therefore, have an extension of time to the date of that notice. Such an extension was justified since the period of the extension would be equal to the period during which they had been unaware of the existence of the September decision to be appealed.
The respondent submitted that the relevant decision was the July decision since the September decision was either supplementary to, or a correction of, the July decision. An extension of time was appropriate only in an exceptional case. Under CPR 3.9(2), if the appellants wished to contend that the present was an exceptional case, which would justify an extension of time for appealing, they had to provide evidence of the facts upon which they relied.
Held: The application was dismissed.
Once the tribunal had released the July decision, it had no power to revoke it. The 13 September 2006 decision corrected the decision released in July with the inclusion of an additional paragraph. The time for appealing the subject matter of the correction, given that it was a distinct topic, might run from 13 September 2006, but the appellants were seeking to appeal part of the original July decision.
Regarding whether there should be an extension of time, CPR, rule 3.9(1) listed a number of matters that the court would consider individually, including: (i) the interests of the administration of justice; (ii) whether the application for relief had been made promptly; (iii) whether the failure to comply was intentional; (iv) whether there was a good explanation for the failure; (v) the extent to which the applicant had complied with other rules, practice directions and court orders; (vi) whether the failure to comply was caused by the party or its legal representative; (vii) whether the likely trial date could still be met if relief were granted; and (viii) the effect that the failure to comply had upon each party.
The court had to consider all the circumstances and carry out the required balancing exercise, paying proper respect to the principle of finality, but making an exception where the facts justifying the exception had been strictly proved pursuant to CPR 3.9(2). In the present case, bearing in mind the inadequate evidence as to how the present state of affairs had come about, the appellants had not established proper justification for their delay sufficient to persuade the court to treat this as an exceptional case, leading to an extension of time for an appeal.
Ben Collins (instructed by the legal department of Revenue & Customs) appeared for the appellants; Kevin Prosser QC and Rupert Baldry (instructed by Hodkin & Co, of East Grinstead) appeared for the respondent.
Eileen O’Grady, barrister
