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Procedure: Extending the Mitchell approach to CPR 52.3(5)

CPR 52.3(5) provides that a request to renew an application for permission to appeal “must be filed within 7 days after service of the notice that permission has been refused.”

In Webb Resolutions Limited v E-Surv Limited [2014] EWHC 49 (QB) the High Court ruled that the Mitchell guidance should be considered when considering an application under CPR 52.3(5) that is served out of time.

In Webb C sued D in respect of losses arising out of a negligent property valuation. The claim settled on the basis that D would pay C’s costs. A detailed assessment hearing took place. D was not happy with the outcome and asked for permission to appeal at the hearing, which was refused. D then sought permission to appeal on paper. This was refused by Haddon-Cave J on 29 July 2013.

For unexplained reasons D did not receive notice of the order of Haddon-Cave J until 10 October 2013. However it was not until 22 November 2013 that D served an application for extension of time for their application for permission to appeal. On 27 November 2013 the matter came before Blair J who extended time and gave permission to appeal having heard oral representations from D only. C then filed an application to set aside the order of Blair J.

In hearing C’s application Turner J considered that on a strict application of CPR 52.3(5) D’s application was made well over 7 days after the order was received and was thus seriously out of time. He further held it was appropriate to consider the Mitchell approach because (1) the wording of CPR 52.3(5) is expressed in mandatory terms; (2) the time limit of 7 days is deliberately short thus emphasising the need for prompt action and; (3) there is a clear and compelling need for an end to litigation. D had provided no good reason for delay and the default was not trivial. For these reasons Turner J set aside the order of Blair J and ruled that D’s appeal was out of time.

The case provides yet another example of the court’s strict new approach and the far reaching ramifications of Mitchell.

Vaughan Jacob / 1st Mar 2014


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