The recent Court of Appeal case of Yeates v Aviva Insurance(1) has shown that the courts will usually take a strict approach to unsuccessful litigants bringing appeals out of time, regardless of the merits of the appeal.
Mr and Mrs Yeates suffered considerable damage to their home in 2007 as a result of flooding. They made a substantial insurance claim in respect of the damage. Some time later the insurers, believing aspects of the claim to be fraudulent, refused to make any further payments and sought recovery of the sums already paid.
Mr Yeates initiated proceedings, and the insurers counterclaimed. Summary judgment was given in favour of the insurers in the Leeds Mercantile Court. However, the judge gave Yeates permission to appeal on the basis that the law as to fraudulent claims was in a state of development and his decision had serious consequences for the defendant.
Time for serving notice of appeal expired 21 days after the judgment, but in the event Yeates did not serve notice of appeal until some eight months later, following the commencement of enforcement proceedings by the insurers. He initially said that he was unaware of the time limit, but later disclosed a letter from his solicitors which drew his attention to the deadline.
In these circumstances the Court of Appeal had to decide whether an extension of time to appeal should be given.
As the judge at first instance had given permission to appeal, it was agreed that the appellant had a real, as opposed to a fanciful, prospect of success on appeal. However, the court refused to extend the time for appealing. It referred to Sayers v Clarke Walker,(2) a decision made shortly after the enactment of the Civil Procedure Rules (CPR), as support for the proposition that there is a strong presumption that time limits should be complied with - save in exceptional circumstances - regardless of the chances of success.
Again citing Sayers, the court held that on an application for relief from sanctions imposed for a failure to comply with any rule, practice direction or court order, the court must take into account the factors listed in CPR 2.9(1), namely:
- the interests of the administration of justice;
- whether the application for relief has been made promptly;
- whether the failure to comply was intentional;
- whether there is a good explanation for the failure;
- the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol;
- whether the failure to comply was caused by the party or the party's legal representative;
- whether the trial date or the likely trial date can still be met if relief is granted;
- the effect which the failure to comply had on each party; and
- the effect which the granting of relief would have on each party.
It was noted that these factors did not refer either to the merits of the appeal or to the prejudice which will be suffered by a prospective appellant if an appeal is not granted. The court acknowledged that in Sayers, it was held that in cases where the question of time is difficult to resolve, the merits of any prospective appeal would have to be considered. Furthermore, this approach had recently been followed in Bank of Scotland v Pereira.(3) However, in the present case the court did not consider the question of an extension of time to be "particularly difficult to resolve".
First, the appellant had not pursued his right to appeal until Aviva took steps to enforce the judgement which it had obtained against him. The court stated that "burying one's head in the sand can very seldom lead to this court exercising a discretion in one's favour".
Second, it was stated that "it is of the highest importance that any would-be appellant is full and frank with the court". In this case the appellant did not reveal that his solicitors had advised him of the deadline for a notice of appeal, but sought "positively and falsely" to assert that he was unaware of any time limit. The court found this to be the sort of conduct which will almost inevitably lead the court to decline to exercise its discretion in favour of a would-be appellant, regardless of the merits of an appeal.
Moreover, the merits of the proposed appeal were found to be highly debatable. In those circumstances the court saw no reason to "lend its aid to a doubtful and difficult appeal which is now well out of time".
The overriding objective of the CPR includes reference to cases being dealt with "expeditiously and fairly". These two aims are often directly contradictory. In determining whether to allow extensions of time, not only for appeals but in case management generally, the court is often trying to balance these two aims: on the one hand of ensuring that cases are dealt with expeditiously, and on the other of avoiding potential unfairness to a litigant.
Before the reforms of Lord Woolf in the late 1990s and the enactment of the CPR, the courts would more frequently favour fairness over expeditious case management. The pendulum has now swung more towards avoiding delay. This change of approach is acknowledged in the court's judgment, which states that "there is a new culture that the rules as to time must be obeyed in all but unusual cases. It is important that that culture be upheld". Even in the post-Woolf era, it is common for lawyers to assume that the courts will not enforce deadlines if there is potential prejudice to a party. Although this may be correct in many cases, the courts are increasingly alive to the prejudice caused to deserving litigants who are delayed in obtaining justice. The clear message is that parties should be mindful of deadlines and avoid sitting on their rights, and lawyers should do all they can to draw such deadlines - and the consequences of missing them - to their clients' attention.
For further information on this topic please contact Benjamin Roe at RPC by telephone (+44 20 3060 6000) or email ([email protected]).