Case No. IP-2018-000045

a hearing in that sense when a judgment is handed down under the terms of the Covid Protocol. Create Financial 11.Before looking at the law more generally, I refer to a case cited by Mr St Quintin, namely Create Financial Management LLP v Lee [2020] EWHC 2046 (QB) and the further arguments he made by reference to that case. 12.In Create Morris J gave judgment in an application for an interim injunction. It was handed down in the afternoon of 17 July 2020. The parties considered its terms for about 40 minutes and then the hearing resumed. There was further oral argument and a supplementary judgment. It was apparent that further matters had to be considered and that another hearing would be necessary the following week. One followed on 20 July 2020 at which the judge approved a draft Order. Thereafter the defendants sought permission to appeal. It was recognised by the judge and the parties that a further issue remained outstanding. The judge gave directions for a further hearing which took place on 24 July 2020. 13.At the hearing on 24 July 2020 the claimant raised the contention that the court had no jurisdiction to give permission to appeal since the application for permission had not been made – it had not been made at the hearing at which the decision to be appealed was made, in compliance with CPR 52.3(2)(a), namely the hearing of 17 July 2020. The defendants submitted that at the close (loosely termed) of the hearing on 17 July 2020, the hearing was adjourned to be continued the following week and was continued on 20 July 2020. 14.Morris J held that since the issue of permission to appeal was made after he had approved the draft order, even if the hearing of 20 July 2020 was a continuation of the hearing of 17 July 2020, as to which the judge made no final ruling, that hearing came to an end upon his approval of the draft order and the making of the order of 20 July 2020. Consequently CPR 52.3(2)(a) was not satisfied and the judge had no jurisdiction to consider an application for permission to appeal. 15.Mr St Quintin submitted that none of the mischiefs to which CPR 52.3(2)(a) is addressed, referred to by Morris J, arise in the present case. That is true, but Morris J considered those mischiefs, in his paragraph 40, which he drew from Lisle-Mainwaring v Associated Newspapers Ltd [2018] EWCA Civ 1470. He said that the mischiefs did not arise on the facts before him and yet he still found that the application for permission to appeal was not made at the hearing specified in CPR 52.3(2)(a). His judgment shows that the question whether CPR 52.3(2)(a) has been complied with does not depend on whether, on the facts of the case, the Lisle-Mainwaring mischiefs are prevented by the rule. 16.Mr St Quintin further submitted that unlike the events in Create Financial, no order has been made dealing with any of the consequences of my judgment of 22 April 2021. He said that I must have anticipated further argument and therefore, by inference, I adjourned the hearing at which the decision to be appealed was made. 17.Although I have no recollection of what I thought at the time, I assume that I contemplated the possibility of further argument. However, I must also have considered it possible that the parties would agree a form of order and in particular that the claimant may choose not to appeal. I do not see any necessary inference of an adjournment of the hearing. McDonald v Rose 18.However, the more substantive answer to Mr St Quintin’s arguments can be drawn from McDonald v Rose [2019] EWCA Civ 4. In his judgment (giving the judgment of the Court) Underhill LJ considered several authorities including Sayers v Clarke Walker [2002] EWCA Civ 645, Owusu v Jackson [2002] EWCA Civ 877, Jackson v Marina Homes Ltd [2007] EWCA Civ 1404, LisleMainwaring v Associated Newspapers [2018] EWCA Civ 1470 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633. He then provided a summary headed “The Correct Procedure” at paragraph 21 (the emphases in bold are mine; that in italics (as well as bold) is original): “[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 and Owusu v Jackson . 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 . 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 LisleMainwaring . (5) Whenever a party seeks an adjournment of the decision hearing as per (3) above they should also