Know When To Apply For Permission To Appeal To The Court Of Appeal: Time Runs From When Judgment Is Handed Down, Not When The Lower Court Refuses Permission

A recent Court of Appeal decision clarifies the rules on applying for permission to appeal to the Court of Appeal - which, the court noted, are often not properly understood by would-be appellants: McDonald v Rose [2019] EWCA Civ 4.

The decision underlines the important practical point that the 21 day time limit for applying for permission runs from the date of the decision to be appealed - which, in the case of a reserved judgment, is the date it was formally handed down. Time does not run from the date the lower court's order is sealed or (where the party has first applied to the lower court for permission, as is usual) the date the lower court refuses permission to appeal.

If a party wants more time to file its application with the Court of Appeal, it must seek an extension of time from the trial judge, either when the judgment is handed down or when requesting an adjournment of the hand-down hearing (so as to give it more time to apply to the lower court for permission). An adjournment in itself will not extend time.

It is possible to apply to the Court of Appeal to extend time retrospectively, but this is treated as an application for relief from sanctions and therefore the three-stage test from Denton v TH White Ltd [2014] EWCA Civ 906 (considered here) will apply.

Background

CPR 52.3(2) provides that an application for permission to appeal may be made: to the lower court at the hearing at which the decision to be appealed was made; or to the appeal court in an appeal notice.

Under CPR 52.12(2), the appeal notice must be filed within 21 days after the date of the decision of the lower court which the appellant wishes to appeal - or such longer or shorter period as may be directed by the lower court.

The underlying claims in the present case arose out of a dispute between siblings in relation to the distribution of their parents' estate. The trial was heard at the Business and Property Court in Cardiff. In accordance with the usual practice, the judge circulated a draft judgment to the parties and notified them that the judgment would be handed down two days later, on 9 March 2018, and that their attendance at court was not required.

The applicant's solicitors wrote to the court on 8 March to say that their client was considering seeking permission to appeal and asked the judge to adjourn the hearing the next day to enable their client to make that application. They did not seek any extension of the default 21 day time limit for filing...