An appeal was recently lost after an application for an oral hearing was made just two days late.(1)
This decision is a timely reminder of the strictness of court deadlines and of the importance of being upfront with the court (and your opponent) which, on this occasion, was unwilling to forgive ambiguity as to whether the deadline had been met.
Two days too late
The claimant, Ms Rafaela Evans, applied for permission to appeal a decision of a costs judge dismissing her application for an assessment of the defendant's costs. The application to appeal was considered on the papers and a copy of the order dismissing the application was received by the claimant's solicitors on 21 May 2019. The claimant then had seven days to apply for a hearing to renew the application for permission to appeal. The events unfolded as follows:
- 30 May 2019 (nine calendar days later) – the claimant's solicitors wrote to the court stating that "we understand that today is the final day to request for an oral hearing taking into account the Bank Holiday dated 27 May" and requesting that the decision be re-considered. The letter was not sent to the defendant's solicitors.
- 3 June 2019 – the claimant's solicitors received the notice that the renewed application had been listed and sent a copy (along with the 30 May letter) to the defendant's solicitors.
- 4 June 2019 – the defendant's solicitors wrote to the court asserting that the claimant's application to renew her application for permission on 30 May had been made late and was therefore invalid. Civil Procedure Rule 2.8(4) provides that a bank holiday is excluded from the computation of time where the specified period is five days or less, which did not apply in this instance given that the relevant time period was seven days.
Claimant's application for relief from sanction and two-day extension
On 6 June 2019 the claimant applied for relief from sanction and a retrospective extension of two days to apply for an oral hearing for permission to appeal. The application was supported by a witness statement from the claimant's solicitor, who stated that as soon as the delay or breach was brought to his attention, his firm had written to the court to request an oral hearing (which was the 30 May letter).
On 11 June 2019 the court granted relief on the basis that the extension had been short and the default not serious or significant.
Appeal of grant of relief and extension
The defendant appealed the 11 June 2019 decision and drew the court's attention to the inconsistencies between the 30 May letter and the 6 June witness statement. The witness statement stated that it had been the realisation that the application was two days late which had prompted the 30 May letter, whereas the 30 May letter asserted that the final day for the application had been 30 May.
The claimant then served a further witness statement from her solicitors. This explained that:
- the wording of the first 6 June witness statement was 'terrible';
- there had been no intention to mislead the court in the 6 June witness statement; and
- at the time that the 30 May letter was prepared, the claimant's solicitors had believed that the application was still on time.
What did the High Court say?
The High Court was dissatisfied with the claimant's further evidence. It found in favour of the defendant and refused the claimant's application for relief from sanction. As a result, the claimant will not be able to pursue her appeal.
The court took the view that the court had been seriously misled by the 6 June witness statement, for which it considered that there was no adequate explanation. The court was even more concerned with the possibility that the claimant's solicitors had known that the application was two days late on 30 May but hoped to pull the wool over the court's eyes by asserting that the application was on time. Matters were made even worse by the claimant's failure to serve the 30 May letter on the defendant so as to provide it with the opportunity to make representations to the court and the claimant that the application was out of time.
How does this decision affect you?
The calculation of time periods under the English Civil Procedural Rules can be complicated but is essential to get right. This decision is a reminder that an entire case may stand or fall on the correct calculation – as well as a reminder of the importance of accuracy and clarity in court correspondence and evidence.