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.
- Introduction
- The rule
- The Claimant’s arguments on the Covid Protocol
- Create Financial
- McDonald v Rose
- 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.
- Jackson v Marina Homes
- 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).
- LisleMainwaring
- also
- Hysaj
- Conclusion