Practice and procedure – Filing of documents – Time limit – Appellant filing appellant’s notice electronically at 4.52pm at Court of Appeal office – Respondent considering filing out of time – Master ruling notice filed in time – Respondent requesting review by Court of Appeal – Whether party permitted to file notice any time up to midnight on last day of specified period – Whether notice filed in time – Master’s decision affirmed
In the context of commercial proceedings, the High Court dismissed applications by the appellants to strike out the respondent’s claim against one of the appellants, or grant summary judgment, and to stay its claim against the others.
The judge’s order stated that the time for filing any appellant’s notice should be extended under CPR 52.12(2)(a) until the date 21 days after the determination of any application for permission to appeal but did not specify a time on the final day by which it should be filed.
It was common ground that the appellants’ time for filing an appellant’s notice expired on 6 June. At 4.52pm on 6 June 2022, the appellants filed an appellant’s notice in the Court of Appeal electronically in accordance with the procedure prescribed by Practice Direction 51O.
The following day, the respondent informed the appellants that it regarded the notice as having been filed out of time because it was filed after 4.30pm and asked whether they would be applying for an extension.
In response, the appellants on 9 June 2022 sought a declaration that the notice had been filed in time but asking for an extension if that were wrong. A master made an order that the notice had been filed in time. In essence, she held that the effect of paragraph 2.1 of PD 51O was that documents could be filed at any time up to midnight.
The respondent requested, pursuant to CPR 52.24(5), that the master’s order be reviewed by the Court of Appeal.
Held: The master’s decision was affirmed.
(1) The Electronic Working Pilot Scheme introduced by PD 51O operated from 16 November 2015 to 6 April 2023. The scheme became operative in different court offices on different dates: paragraph 2.23 provided that as regards the Civil Division of the Court of Appeal, electronic filing was mandatory (for parties who were legally represented) from 14 February 2022.
Section 2 was headed “Usage and Operation of Electronic Working”. Paragraph 2.1 began: “Electronic Working enables parties to issue proceedings and file documents online 24 hours a day every day all year round, including during out of normal Court office opening hours and on weekends and bank holidays, except…” The practice direction contained no provision limiting the time of day during which a document could be filed.
The provisions governing the traditional methods of filing contained no requirement for filing within office hours: the only limitation (at least in the Royal Courts of Justice) was the practical one of effecting delivery. When it was thought desirable that there should be such a limitation in the case of filing by fax and e-mail, which were not subject to the same practical limitation, an explicit requirement had to be introduced: Van Aken v Camden London Borough Council [2002] EWCA 1724; [2003] 1 WLR 684 considered.
(2) Against that background, when PD 51O introduced electronic filing, any limitations on the permissible times of filing would require to be the subject of explicit provision; but there was none. No rule or practice direction required filing within office hours in the case of electronic filing, although, for the avoidance of doubt, such a requirement could be introduced by a specific order in the particular case: normally there would be no purpose in any such requirement, but there might be a reason for it in particular circumstances.
That was sufficient to establish that documents could be filed electronically out of office hours. But the same conclusion could be reached by reference to paragraph 2.1 of PD 51O. That provision read more like a general statement of the 24-hour availability of electronic filing than a specific rule, and it was not directed explicitly to the question of the time of day at which a time limit for filing expired. However, the fact remained that it contained an unqualified statement that under the scheme parties could “issue proceedings… 24 hours a day… including out of normal Court office operating hours”.
(3) In the absence of any provision to the contrary and subject to any different order in the particular case, that would reasonably be understood by litigants as a statement that such filing would be effective for all purposes, including where time expired on the day in question. There was no reason why electronic filing should be treated in the same way as filing by e-mail or fax.
There was, indeed, some reason why it should not be: the scheme was intended not simply to supplement traditional methods of filing but to replace them (subject to some limited exceptions) with a wholly new method.
(4) The court’s attention had been drawn to CPR 2.9(1), which required that where a court imposed a time limit for doing any act, the last date for compliance should, whenever practicable, include the time of day by which the act had to be done. But even if that rule applied to an extension such as was granted in this case, the court’s order included no such time.
Reference was also made to the obligation imposed on the court office by paragraph 2 of Practice Direction 5A, read with paragraph 5(4) of PD 51O, to record the date and time of filing. But the existence of that obligation did not entail that documents had to be filed within office hours, as long as there were means by which the date and time could be ascertained. That was plainly the case with electronic filing.
Further, it was pointed out that paragraph 1.2(1) of PD 51O made clear that: “Electronic Working works within and is subject to all statutory provisions and rules together with all procedural rules and practice directions applicable to the proceedings concerned, subject to any exclusion or revision within this Practice Direction”. But an entitlement to file outside office hours was not inconsistent with any rule or practice direction applying to the Civil Appeals Office.
Accordingly, upon review there was no reason to alter the master’s decision that the applicable notice had been filed in time.
The parties did not appear and were not represented.
Eileen O’Grady, barrister
