[2025] EWHC 2746 (Comm)

Whether the application for permission to appeal has been made out of time

The First Defendant submitted that the application for permission to appeal is made out of time, because:

The Claimant submitted that:

CPR rule 52.3(2) provides that:

“(2)

Unless the appeal is within paragraph (1)(c), an application for permission to appeal may be made -

(a)

to the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing; or

(b)

to the appeal court in an appeal notice.”

Accordingly, the lower court has jurisdiction to grant permission to appeal, on an application by a party, at the hearing at which the decision was made or at any adjourned hearing.

In McDonald v Rose [2019] EWCA Civ 4; [2019] 1 WLR 2828, at para. 21, the Court of Appeal explained the procedure to be followed in the event that an application for permission to appeal is made or intended to be made:

“21.

It is the experience of the court that the effect of the rules, as expounded in the authorities referred to above, is often not properly understood by would-be appellants. We think there is value in our summarising in this judgment the effect of those authorities and the procedure that ought to be followed in consequence by parties wishing to seek permission to appeal from the lower court (which is good practice though not mandatory). We would set the position out as follows:

(1)

The date of the decision for the purposes of CPR r 52.12 is the date of the hearing at which the decision is given, which may be ex tempore or by the formal hand down of a reserved judgment: see Sayers v Clarke Walker (Practice Note) [2002] 1 WLR 3095 and Owusu v Jackson [2003] PIQR P13. We call this the decision hearing.

(2)

A party who wishes to apply to the lower court for permission to appeal should normally do so at the decision hearing itself. In the case of a formal hand down where counsel have been excused from attendance that can be done by applying in writing prior to the hearing. The judge will usually be able to give his or her decision at the hearing, but there may be occasions where further submissions and/or time for reflection are required, in which case the permission decision may post-date the decision hearing.

(3)

If a party is not ready to make an application at the decision hearing it is necessary to ask for the hearing to be formally adjourned in order to give them more time to do so: see Jackson v Marina Homes Ltd [2008] CP Rep 17. The judge, if he or she agrees to the adjournment, will no doubt set a timetable for written submissions and will normally decide the question on the papers without the need for a further hearing. As long as the decision hearing has been formally adjourned, any such application can be treated as having been made “at” it for the purpose of CPR r 52.3(2)(a). We wish to say, however, that we do not believe that such adjournments should in the generality of cases be necessary. Where a reserved judgment has been pre-circulated in draft in sufficient time parties should normally be in a position to decide prior to the hand down hearing whether they wish to seek permission to appeal, and to formulate grounds and such supporting submissions as may be necessary; and that will often be so even where there has been an ex tempore judgment. Putting off the application will increase delay and create a risk of procedural complications. But we accept that it will nevertheless sometimes be justified.

(4)

If no permission application is made at the original decision hearing, and there has been no adjournment, the lower court is no longer seized of the matter and cannot consider any retrospective application for permission to appeal: see Lisle-Mainwaring [2018] 1 WLR 4766.

(5)

Whenever a party seeks an adjournment of the decision hearing as per (3) above they should also seek an extension of time for filing the appellant’s notice, otherwise they risk running out of time before the permission decision is made. The 21 days continue to run from the decision date, and an adjournment of the decision hearing does not automatically extend time: see Hysaj [2015] 1 WLR 2472. It is worth noting that an application by a party for more time to make a permission application is not the only situation where an extension of time for filing the appellant’s notice may be required. It will be required in any situation where a permission decision is not made at the decision hearing. In particular, it may be that the judge wants more time to consider (see para (2) above): unless it is clear that he or she will give their decision comfortably within the 21 days an extension will be required so as to ensure that time does not expire before they have done so. In such a case it is important that the judge, as well as the parties, is alert to the problem.

(6)

As to the length of any extension, Brooke LJ says in Jackson v Marina Homes Ltd [2008] CP Rep 17, para 8 that it should normally be until 21 days after the permission decision. However, the judge should consider whether a period of that length is really necessary in the particular case: it may be reasonable to expect the party to be able to file their notice more promptly once they know whether they have permission.”

The application for permission to appeal made to the judge whose decision is sought to be appealed is to be made at the hearing at which the decision is made or at the adjourned hearing. The date at which the decision is made is generally taken to be a reference to the date of handing down of the judgment, including where the judgment has been handed down remotely, and not to the date on which any resulting order is drawn up or sealed (McDonald v Rose [2019] EWCA Civ 4; [2019] 1 WLR 2828, para 21(1); Claydon Yield-O-Meter Ltd v Mzuri Ltd [2021] EWHC 1322 (IPEC), para. 19; see also R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 WLR 2472, para. 22, which concerned the meaning of the words “date of the decision of the lower court” in the context of an extension of the time for filing an appellant’s notice).

In the present case, no application was made by the Claimant for permission to appeal prior to or at the time the Judgment was handed down.

Accordingly, unless I had adjourned the hearing of the application for permission to appeal no later than the date of the Judgment on 7th August 2025, I am unable to accede to an application for adjournment afterwards. In McDonald v Rose [2019] EWCA Civ 4; [2019] 1 WLR 2828, at para. 20, Underhill LJ said that “A retrospective application for permission to appeal, where the judgment has been handed down and the hearing has not been adjourned, cannot be considered by the lower court”; this is because the lower court is no longer seised of the matter (para. 21(4); see also Claydon Yield-O-Meter Ltd v Mzuri Ltd [2021] EWHC 1322 (IPEC)).

The question therefore is whether I had adjourned the hearing of any such application for permission to appeal when I circulated the draft judgment on 31st July 2025. At that time, I informed the parties that that Judgment would be handed down on 7th August 2025 and that “Consequential issues will be dealt with on paper, unless either party requests an oral hearing”.

If I had adjourned it, I would have had jurisdiction to entertain the application for permission to appeal at this time and, as explained below, to deal with the application for an extension of time for the filing of an Appellant’s Notice.

The Claimant submitted that this direction was in reality or effect an order for the adjournment of the hearing for its application for permission to appeal. The First Defendant points out that no application for permission to appeal was intimated by the Claimant until 9th September 2025.

In my judgment, I am not able, at this time, to determine the application for permission to appeal, because the application was not made prior to or at the time of the handing down of the Judgment on 7th August 2025 and because no order was made for the adjournment of the hearing of that application (the decision hearing) by 7th August 2025. My reasons are as follows:

In these circumstances, there could have been no adjournment of the decision hearing to deal with such an application. I should make it clear that had such an application for an adjournment been made, I would have granted it.

In coming to this conclusion, I note that my decision may be regarded as being at odds with the decision of HHJ Paul Matthews in Terna Energy Trading doo v Revolut Ltd [2024] EWHC 1524 (Comm). In that case, upon circulating a draft judgment to the parties, the judge invited the parties to seek to agree the wording of the order “before the hearing”, and in default of such agreement, the judge invited written submissions on consequential matters in accordance with a stipulated timetable. In that case, the judge held that he had adjourned the hearing of the application for permission to appeal, stating at para. 11 that:

“The respondent says that my view as there expressed is wrong, or at least inapplicable to the present case. McDonald v Rose requires that the hand-down hearing be “formally adjourned”, and here there was, it says, no formal adjournment. I accept that I did not use any express words such as “I hereby adjourn this hearing”. Nevertheless, that is what I meant by setting a timetable for written submissions on consequential matters (which were not restricted in any way). In my judgment, I did adjourn the hand-down hearing, although to a written procedure instead of to an oral one. Accordingly, I hold that I have jurisdiction to deal with an application by the applicant, contained in the written submissions for which I provided, for permission to appeal.”

Of course, in the present case, unlike the learned judge in Terna Energy Trading doo v Revolut Ltd, I had no intention to grant an adjournment. However, I doubt whether that is necessarily the principal consideration in determining whether there has been an adjournment.

On the other hand, in Elbanna v Clark [2024] EWHC 1471 (KB), the relevant draft judgment was circulated to the parties on 11th March 2024; on 14th March 2024, the judge gave permission to the defendant to share the judgment with his lay client’s insurer; the parties were told of the date and time of hand down with a request that they seek to agree an order in relation to costs. On the day of the hand down, the defendant’s solicitor wrote by e-mail to the court saying that they had not had an opportunity to discuss or review matters with counsel and “there is the issue of the costs order and other matters to be addressed and we have not yet been party to or received any communications on this point”, and suggesting that the hand down was delayed until another day. Counsel for the claimant sent a draft minute of order to the defendant’s counsel on the same day. The claimant invited the court to hand down the judgment on the basis that the parties would seek to agree consequential orders and request a hearing if they were unable to agree. The judge indicated that he intended to deliver the judgment and to deal with consequential matters at a hearing, if necessary, on another day. There was no indication by the defendant that he was seeking permission to appeal or an extension of time in which to do so.

At para. 15-16, Sweeting J held that he had no jurisdiction to dispose of the application for permission to appeal, stating that:

“15.

I consider that the central question is whether the defendant’s solicitors e-mail of the 20th of March 2024 could be regarded as an application to adjourn the decision hearing itself notwithstanding that the hand down of the judgment took place on that day.

16.

If the e-mail request was intended to raise permission to appeal as a reason for delaying the hand down of judgment then it was wholly opaque on the point. Any such construction would also be inconsistent with what followed since the hand down went ahead, there was no application to list the matter for a hearing within the time limit for appealing or to extend that period; instead the defendant made an application directly to the Court of Appeal. The suggestion that there might be a further hearing of an adjourned decision hearing appears to have arisen as a result of the closing of the appeal to the Court of Appeal by the Master. The guidance given in McDonald v Rose, helpfully reproduced in the White Book, was simply ignored by the defendant. For my part I intended to give the parties further time in which to seek to agree an order carrying the judgment into effect and dealing with the issue of costs. I conclude that the hand down on the 20th of March 2024 was the ‘decision hearing’ and that this court no longer has jurisdiction to hear an application for an extension of time or for permission.”

It seems to me that these two decisions appear to offer different solutions to what is fundamentally the same problem. For the reasons given above, if there is a conflict between these two decisions, I prefer the approach adopted by Sweeting J in Elbanna v Clark.

Therefore, I am unable to deal with the application for permission to appeal because I lack the jurisdiction to do so.