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No need for late night panic: Court of Appeal decides that midnight e-filing is permissible

22 December 2022. Published by Simon Hart, Partner and Suzan Kurdi, Of Counsel

In Microsoft Ireland Operations Ltd v JJH Enterprises Ltd, the Court of Appeal recently considered the short, but important, procedural question of whether a document may be filed electronically at any time up to midnight on the date by which the document is due. Specifically, this concerned the impact of the Electronic Working Pilot Scheme introduced by Practice Direction (PD) 51O on the deadline for filing documents electronically.

Facts

The issue initially arose in the context of a claim brought by JJH Enterprises Limited (JJH) in the Commercial Court against a number of Microsoft entities. The Microsoft entities had applied, unsuccessfully, to strike out JJH's claim and/or obtain summary judgment on it and wished to appeal that decision.

The judge had extended time for filing any appellant's notice seeking permission to appeal to 21 days after the determination of any application for permission to appeal made to the judge. The order did not specify a time on the final day by which the appellant's notice must be filed. The judge subsequently refused permission to appeal, resulting in Microsoft's time for filing an appellant's notice with the Court of Appeal expiring on 6 June 2022.

At 4:52pm on 6 June 2022, Microsoft filed an appellant's notice with the Court of Appeal electronically in accordance with the procedure prescribed by PD 51O. The following day, JJH's solicitors informed Microsoft's solicitors that they regarded the appellant's notice as having been filed out of time as it had been filed after 4:30pm. In response, Microsoft sought a declaration that the appellant's notice had been filed in time. The master that heard the application agreed and made an order declaring that the appellant's notice had been filed in time on the basis that the effect of paragraph 2.1 of PD 51O was that documents could be filed at any time up to midnight.

JJH's solicitors then requested that the master's order be reviewed by a Court of Appeal judge, a request that the master felt obliged to grant. In the meantime, the Court of Appeal had considered Microsoft's appellant notice and had refused permission to appeal. Accordingly, whether Microsoft's appellant notice had been filed on time became something of a moot point. Nevertheless, at JJH's solicitors' behest, the Court of Appeal considered the issue of timing given its significance to practitioners and court users alike.

Decision

The Court started by considering the relevant rules and practice directions:

PD 52C governs appeals to the Court of Appeal. Paragraph 2(3) provides that an appellant's notice must be filed in the Civil Appeals Office Registry. The default timeframe for doing so under Civil Procedure Rules (CPR) 52.12 (2)(b) is 21 days after the decision of the lower court. There is no provision dealing with the time of day before which filing must occur. The opening hours for the Civil Appeals Office Registry (which is part of the court offices for the senior courts) is stated in paragraph 2.1(a) of PD 2A to be weekdays between 10am and 4:30pm.

Filing is defined in CPR 2.3(1) as "delivering a document or information, by post or otherwise, to the court office".

Accordingly, the Court found that there is nothing in the rules or PDs limiting the hours of the day during which an appellant's notice may be filed, nor is there anything requiring that filing take place in office hours. In practical terms, when the only option for filing documents was personal delivery to the relevant court office or post, there was a practical limitation on when documents could be filed. However, with the advent of filing by fax and email, and more recently, electronic filing, the same practical limitation no longer exists. The question is then, where documents can be filed electronically at any time, whether documents filed after "office hours" are treated as being filed on the same day or on the next day the court office is open.

The Electronic Working Pilot Scheme introduced by PD 51O is intended to "enable parties to issue proceedings and file documents online 24 hours a day every day all year round, including during out of normal Court office opening hours and on weekends and bank holidays". There is no provision limiting the time of day during which a document can be filed and indeed the entire premise of PD 51O points the other way. It is clear, therefore, from the wording of PD 51O, that documents may be filed electronically out of office hours. The Court also noted that there does not seem to be any provision in the CPR or PDs issued under it requiring electronic filing to take place within office hours. Accordingly, in the absence of any provision to the contrary (eg, in an order which specifies the time by which a filing must be made), the Court concluded that electronic filing made out of office hours "would be effective for all purposes, including where time expired on the day in question".

Comment

The Court's analysis confirmed what many believed to be the (unwritten) position – namely, that where a rule, PD or order specifies that a filing may be made by a particular date, but is silent on the time by which such filing must be made, the filing may be made electronically at any time up to midnight on the deadline date. Conversely, and unsurprisingly, where provision is made for a particular time by which the filing must be made, either in a rule, PD or order, a document filed electronically on the deadline date but after the specified time will be treated as having been made out of time.