In Microsoft Ireland Operations Ltd and others v JJH Enterprises Ltd (trading as ValueLicensing) [2022] EWCA Civ 1509, the Court of Appeal has confirmed that an Appellant's Notice can be filed up until midnight on the relevant day if filed electronically under PD 51O (the 'Electronic Working Pilot Scheme'). CPR 52.12(2) defines the time period within which an Appellant's Notice must be filed but does not specify the time of day by which filing must occur. The court held that there was no reason why electronic filing should have to take place by a particular time, such as 4.30pm. Electronic filing was not introduced in order to supplement other methods (such as email, post or fax). It was intended to replace such methods with a wholly new scheme through which parties can issue proceedings and file documents online '24 hours a day every day all year round'.

What are the practical implications of this case?

This judgment will be reassuring to practitioners filing Appellant's Notices in the Court of Appeal. It clarifies that documents filed electronically under PD51O can be filed up until midnight on the last day of the relevant filing period (unless a court order specifies otherwise). Further, while not ruling on the point, Lord Justice Underhill stated that he did not believe that any Rule or Practice Direction mandated filing in office hours only when filing electronically under PD51O.

The Court of Appeal did, however, confirm that in the event a court order specifically required filing a document by a specified time, it was likely that such an order would override paragraph 2.1 of PD51O (which provides that parties can issue proceedings and file documents online 24 hours a day every day all year round).

The court also analysed the interaction between paragraph D18.2 of the Commercial Court Guide (CCG) and paragraph 2.1 of PD51O. Paragraph D18.2 CCG states that if the court orders an act to be done by a certain date without specifying the time for compliance, the latest time for compliance is 4.30pm. In this case, the Court of Appeal found that the lower court had not ordered an act to be done, it had merely extended the time for filing an Appellant's Notice. While not ruling on the point, the Court of Appeal cast doubt on the first instance finding that the two procedural provisions were inconsistent.

When filing a document electronically pursuant to an order of the Commercial Court (where no time for filing is specified and where the filing could be classed as 'an act to be done'), the document should therefore be filed before 4.30pm in order to comply with D18.2 CCG.

What was the background?

Microsoft (the Appellant), wished to appeal an order of the Commercial Court. The Commercial Court extended the time limit for filing an Appellant's Notice pursuant to CPR 52.12(2), until 6 June 2022. At 4.52pm on 6 June, Microsoft filed its Appellant's Notice electronically, pursuant to PD51O. JJH Enterprises (the Respondent) argued that the notice was out of time, as it was filed after 4.30pm. It argued, amongst other things, that because the order extending the time for filing did not specify a time for compliance, paragraph D18.2 CCG required it to be filed by 4.30pm.

At first instance, the Master made an order declaring that the Appellant's Notice had been filed on time and that PD51O provided for electronically filed documents to be filed at any time up until midnight. The Master also held that D18.2 CCG had no application in the Court of Appeal and that it was, in any event, inconsistent with PD51O.

JJH Enterprises requested that the Master's order be reviewed by the Court of Appeal. Despite permission to appeal in the underlying proceedings having been refused by this point, the Court of Appeal agreed to hear the review, given the wider significance of the point. The court reviewed the submissions on the papers and gave directions for an oral hearing, to allow for reporting.

What did the court decide?

The Court of Appeal upheld the Master's decision that the Appellant's Notice was filed in time. It held:

  • CPR provisions governing traditional methods of filing (such as by post and in person) did not specify the time for filing because of the practical constraints of court opening hours. When filing by fax and e-mail were introduced (which were not subject to the same practical restrictions), PD 5A (applying to faxes) and 5B (applying to emails) required that documents be filed by 4pm. PD51O adopted a different approach, however. It is a wholly new method of filing with no restrictions on the time by which a document must be filed (unless that is specified by an order in a particular case).
  • An order extending the time for filing an Appellant's Notice is not an 'order that an act be done'. It is not, therefore, subject to paragraph D18.2 CCG. Where paragraph D18.2 CCG does apply, its effect may be similar to an order specifying filing by a particular time, that is, it may override paragraph 2.1 PD51O.
  • CPR 2.9(1) requires that the time limit for doing any act should, where practicable, include the time of day by which the act must be done. However, no such time was specified by the Commercial Court in this case and this provision (if it applied at all in this scenario) had no impact.
  • Paragraph 2(1) PD5A read together with paragraph 5(4) of PD 51O requires the court office to record the date and time of filing. However, the Court of Appeal held that this does not mean that documents must be filed within office hours. Provided there are means by which the date and time can be ascertained (which plainly there are with electronic filing), this obligation is satisfied.

This article was first published on Lexis®PSL on 25 November 2022