In Saint Benedict Land Trust Ltd v London Borough of Camden and another, Marcus Smith J allowed the applicant (Saint Benedict) to vary or revoke an order striking out the applicant’s appeal for failure to file an appeal bundle, on condition that the applicant file a complete appeal bundle within seven days or make a proper request for an extension of time.
The applicant appealed an order of DJ Obodai dated 22 February 2019, sitting in the Business and Property Courts in Manchester.
On 26 April 2019, Marcus Smith J made an order on the papers and without a hearing, striking out the appeal. His order noted that:
- The appeal bundle had to be filed with the court by 19 April 2019.
- No appeal bundle had been filed.
- No extension of time had been sought.
However, Marcus Smith J’s order was not properly served on the applicant. The email enclosing it was misdirected. Although the order eventually came to the applicant’s attention, the current application to vary or revoke Marcus Smith J’s order was made later than it should have been, but he accepted that there was good reason for it.
Although the correspondence with the court following Marcus Smith J’s order suggested that an extension of time was granted to the applicant to enable it to file an appeal bundle, the reality was that no such extension had been granted.
At the hearing on 17 May 2019, Marcus Smith J was shown an email from the applicant dated 28 March 2019 to Chancery Judges’ Listing, which stated, “… We write to advise that we have planned to file the skeleton argument tomorrow, Friday 29 March…” The email then notes that the transcript of the approved judgment of DJ Obodai has not been obtained. It then says: “… Please inform the case lawyer dealing with the appeal that we will be filing the skeleton argument seven days after we have received the judgment…” The response from Listing noted the request for an extension of time and said that the court would expect the skeleton argument to be enclosed with the appeal bundle when filed.
Marcus Smith J made clear that the informal communication that had taken place with the court, on which the applicant relied, should not have taken place. He emphasised that the rules regarding the filing of appeal bundles were clear. He stressed the letter from Listing to the applicant, allocating the appeal an appeal number, stating that an extension of time must formally be sought and should have signalled to the applicant that a formal application was required.
Marcus Smith J also emphasised that it was unfair to email court staff, without any particular details, requesting in vague terms an extension of time. This was particularly so when there is in place a mandatory requirement specifying when an appeal bundle needs to be filed. If that cannot be done, an extension of time should be applied for formally.
By the time of the hearing before Marcus Smith J, the applicant asserted that it had filed an appeal bundle, but the judge recorded that the bundle lacked the transcript of the hearing and the judgment of DJ Obodai.
On making the application for an extension of time, counsel for the applicant submitted that the order striking out the appeal was irregular. Marcus Smith J rejected that and qualified his rationale for strike out because the applicant had not complied with the rules. The judge also accepted that it would be wrong to deprive the applicant of the potential to have an appeal heard purely on formal grounds. As such, the applicant was given seven days (by 24 May 2019) to file a complete appeal bundle by the intended appellant. In default, the appeal would stand struck out again.
Marcus Smith J went on to emphasise that if a proper extension of time request was made before 24 May 2019, the court would surely consider it. The judge explained what he meant by “proper”; that is, a formal application supported by evidence explaining why the relevant material cannot be filed. At this point, the judge stressed that the court rules were in place for a reason, and that the court takes a dim view of parties attempting to get around them.
Practical implications for practitioners
Marcus Smith J’s judgment is succinct and short, just eight paragraphs, so a quick read.
The judgment is a handy reminder to all practitioners that quite simply observing court rules and procedure requires a properly constituted application to be made for an extension of time, and that informal correspondence with the court can never be relied on, or be a substitute for, a formal application.
The judgment also highlights the importance of ensuring that all procedural steps have been followed when preparing an appeal, and of remaining ready to make a formal application for an extension of time.