The Court of Appeal confirmed that the principles to be derived from the decisions in Mitchell ([2013] EWCA Civ 1537) and Denton ([2014] EWCA Civ 906) applied to applications for extensions of time for filing a notice of appeal.

The Applicants had each failed to file a notice of appeal within the time prescribed by CPR r 52.4(2) and sought extensions of time. The Applicants argued that since applications for extensions of time were neither applications for relief from sanctions under CPR r 3.9 nor sufficiently analogous, the court’s jurisdiction was untrammelled by the Mitchell/Dentonprinciples and the court should make whatever order it considered just.

Whilst the Court of Appeal accepted that the applications were not formally applications for relief from sanctions under r 3.9, it held that applications for extensions of time for filing a notice of appeal should be approached in the same manner because the implied sanction of the loss of the right to pursue the appeal meant they were analogous. Therefore the Mitchell/Denton principles apply to such applications (paragraph 36).

The Court of Appeal confirmed the implied sanction basis upon which the courts had proceeded since Sayers v Clarke Walker ([2002] EWCA Civ 645) and had continued following the Mitchell decision. Moore-Bick LJ reaffirmed certain established rules and made some general observations on the Mitchell/Denton approach, which included:

(i) For the purposes of r 52.4(2), time runs from the date on which the court pronounces its decision. Where determination of application for permission to appeal is adjourned, the judge could be asked to extend time.

(ii) In most cases the merits of the parties’ respective cases will have little to do with whether it is appropriate to grant an extension of time. Only in cases where the court can assess without much investigation that the merits are very strong or very weak will they have a significant part.

(iii) The litigant’s shortage of funds or a lack of representation does not provide a good reason for non-compliance.

(iv) There are no special rules for appeals from the Administrative Court or for public authorities. The nature of proceedings (including issues which are in the public interest) may, however, be a relevant factor.

Regina (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633, 16 December 2014