[2025] EWHC 2746 (Comm)

Fecha: 24-Oct-2025

The time for the filing of the Appellant’s Notice

The time for the filing of the Appellant’s Notice

43.

The Claimant applies for an extension of time to apply to the Court of Appeal for permission to appeal by means of the filing of an Appellant’s Notice, in the event that I decline the Claimant’s application for permission.

44.

CPR rule 52.12 provides that:

“(1)
Where the appellant seeks permission from the appeal court, it must be requested in the appellant’s notice.
(2)
The appellant must file the appellant’s notice at the appeal court within -
(a)
such period as may be directed by the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing (which may be longer or shorter than the period referred to in sub-paragraph (b)); or
(b)
where the court makes no such direction, and subject to the specific provision about time limits in rules 52.8 to 52.11 and Practice Direction 52D, 21 days after the date of the decision of the lower court which the appellant wishes to appeal.”

45.

The Claimant submitted that:

(1)

The Court’s determination on paper of these consequential issues will take place at the adjournment of the hearing at which the Court’s decision was made.

(2)

The Court is invited to direct, pursuant to CPR rule 52.12.(1)(a), that the time period for filing of the Appellant’s Notice is 14 days from the date of the Court’s decision on the application for permission to appeal is communicated to the parties.

(3)

The Claimant does not require an extension of time for the filing of the Appellant’s Notice. Instead, the Claimant applies for a direction as to the time for filing the Appellant’s Notice, the Appellant’s Notice is to be filed 14 days, not 21 days, after the determination of the application for permission to appeal.

(4)

There is therefore no need for an application for relief against sanctions. In any event, if, which is emphatically not accepted, this is an out-of-time application for an extension, then in relation to each of the three considerations referred to in Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926:

(a)

The breach is not significant, it is short. In the first half of the long vacation neither party rushed to sort out consequential issues.

(b)

The obvious explanation is that the Claimant understood the Court’s email direction as being to adjourn the permission to appeal application.

(c)

All the circumstances militate in favour of a short extension of time. It is unlikely to cause any additional delay.

46.

The First Defendant submitted that:

(1)

The Claimant belatedly indicated an intention to make an application to the Court for permission to appeal for the first time on 9th September 2025. The possibility of a such an application was therefore first raised 32 days after judgment was handed down, outside the standard 21 days for the filing of an Appellant’s Notice under CPR rule 52.12.

(2)

The application now made for an extension of time is made too late, and the Court should not entertain any such application.

(3)

The Claimant will need an extension of time for lodging of the Appellant’s Notice: see paragraphs 28 to 32 of their submissions. As paragraph (5) of the McDonald v Rose guidance makes clear, even if (contrary to the above) the Court has adjourned the “decision hearing”, the 21 day period in CPR rule 52.12 will run from the hand down date. That period therefore expired on 28th August 2025.

(4)

The Claimant’s application is therefore an “out of time” application for a retrospective extension, governed by the Denton three-stage test (R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472). There is no prospect at all of the Claimant satisfying that test:

(a)

At the first stage, the breach is significant. The Claimant first applied for a retrospective extension of time on 16th September 2025, 19 days after the expiration of the 21 day period in CPR rule 52.12. The Claimant has had nearly double the permitted time to make this application.

(b)

At the second stage, no explanation has been given for that significant breach. The McDonald v Rose guidance is or should be well-known to litigators in this Court.

(c)

At the third stage, “all of the circumstances” militate against a retrospective extension. The application is long out of time and appears to have been made as an afterthought to allow the Claimant to hold onto the security in Turkey. In any event, the Claimant’s grounds of appeal have no real prospects of success.

47.

As is evident from the Court of Appeal’s decision in McDonald v Rose, the requirement to extend time for the filing of an Appellant’s Notice is distinct from the adjournment of the decision hearing. This means that even if the Court were to adjourn the decision hearing for the purpose of entertaining an application for permission to appeal, that in itself would not amount to an extension of time for the filing of an Appellant’s Notice.

48.

By reason of CPR rule 52.12(2)(a), the lower court has the jurisdiction to grant an extension of time either at the date of the decision hearing or at the time of the adjourned hearing. In the current case, there was no adjournment of the decision hearing. Accordingly, I do not have jurisdiction to dispose of an application for an extension of time for the filing of the Appellant’s Notice (Elbanna v Clark [2024] EWHC 1471 (KB), para. 16).

49.

If I am wrong and I do have jurisdiction to deal with the application for an extension of time, I would have granted the application to extend time by 21 days from today’s date.

50.

The application on this premise would have been out of time, because absent an extension, the time limit for filing an Appellant’s Notice expired 21 days after the date of the handing down of the Judgment, i.e. on 28th August 2025 (CPR rule 52.12(2)(b)). Applying the Denton considerations,

(1)

The failure to comply with the requirements of CPR rule 52.12(2) might be regarded as significant, rather than serious (McDonald v Rose [2019] EWCA Civ 4; [2019] 1 WLR 2828, para. 27-28).

(2)

As indicated by the contrasting decisions in Terna Energy Trading doo v Revolut Ltd [2024] EWHC 1524 (Comm) and Elbanna v Clark [2024] EWHC 1471 (KB), the failure to comply was the result of an understandable misapprehension (though I note McDonald v Rose [2019] EWCA Civ 4; [2019] 1 WLR 2828, para. 32).

(3)

Notwithstanding the above, if the correct procedure had been followed, the application for an extension of time would have been made at this time, with the result that no time would have been lost by any failure on the part of the Claimant. In other words, there has been no prejudice to the First Defendant.