Gary Joseph McDonald v Michelle Rose & 8 Ors (2019)
The Court of Appeal gave guidance on the procedure to be followed by parties wishing to seek permission from a lower court to appeal to an appeal court.
The applicant applied for an extension of time to seek permission to appeal against a decision made in a succession claim.
The judge had circulated a draft judgment on 7 March 2018. The parties were notified that judgment would formally be handed down on 9 March and that their attendance was not required. On 8 March, the applicant wrote to court saying that he was considering seeking permission to appeal and asking the judge to adjourn the hand-down hearing to enable him to apply for permission. He did not seek any extension of the 21-day time limit provided for in CPR r.52.12 for filing an appellant's notice with the Court of Appeal. The judge handed down judgment on 9 March and notified the parties that the application for permission had been adjourned for 14 days from 9 March. The parties filed written submissions on 23 March; the respondents opposed the permission application and opposed any extension of time for the filing of an appellant's notice beyond 30 March. The judge refused permission to appeal on 18 April. The applicant filed an appellant's notice on 9 May. That was the last possible day if the 21 days began on 18 April but was out of time if they began on 9 March.
Correct procedure for seeking permission from lower court - The date of the decision for the purposes of r.52.12 was the date of the hearing at which the decision was given, which could be ex tempore or by the formal hand-down of a reserved judgment, Sayers v Clarke Walker  EWCA Civ 645,  1 W.L.R. 3095,  5 WLUK 386 and Owusu v Jackson  EWCA Civ 877,  1 C.L.C. 246,  6 WLUK 327 followed. A party wishing to apply to the lower court for permission to appeal should normally do so at the decision hearing itself. In the case of a formal hand-down where counsel had been excused attendance, that could be done by applying in writing before the hearing. The judge would usually be able to give their decision at the hearing, but there could be occasions where further submissions and/or time for reflection were required, in which case the permission decision could post-date the decision hearing. If a party was not ready to apply at the decision hearing it was necessary to ask for the hearing to be formally adjourned to give more time, Jackson v Marina Homes Ltd  EWCA Civ 1404,  C.P. Rep. 17,  11 WLUK 317 followed. If the adjournment was granted, the judge would set a timetable for written submissions and would normally decide the question on the papers without the need for a further hearing. As long as the decision hearing had been formally adjourned, any such application could be treated as having been made "at" it for the purpose of r.52.3(2)(a). However, such adjournments should not generally be necessary. Where a reserved judgment had been circulated in draft in sufficient time, parties should normally be able to decide before the hand-down hearing whether they wished to seek permission. That would often be so even where there had been an ex tempore judgment. If no permission application was made at the decision hearing and there had been no adjournment, the lower court was no longer seized of the matter and could not consider any retrospective application for permission, Lisle-Mainwaring v Associated Newspapers Ltd  EWCA Civ 1470,  1 W.L.R. 4766,  6 WLUK 547 followed. Whenever a party sought adjournment of the decision hearing, they should also seek an extension of time for filing the appellant's notice, otherwise they risked running out of time before the permission decision was made: an adjournment of the decision hearing did not automatically extend time, R. (on the application of Hysaj) v Secretary of State for the Home Department  EWCA Civ 1633,  1 W.L.R. 2472,  12 WLUK 562 followed. An extension of time for filing an appellant's notice could also be required in any other situation where a permission decision was not made at the decision hearing. The length of any extension should normally be until 21 days after the permission decision, but the judge should consider whether that length of extension was really necessary in the particular case (see para.21 of judgment).
Instant case - The applicant had failed to apply to extend the 21-day period. The 21 days began when the substantive judgment was handed down, not when the order including the refusal of permission to appeal was made. Permission to appeal would be refused on the merits of the case; further, the case would have been a borderline one for extending time as a relief from sanctions (paras 24-25, 33-34, 58).