The danger of sitting on your right to appeal
Two recent Court of Appeal cases have illustrated that the courts will take a strict approach to unsuccessful litigants who bring appeals out of time.
In the first case, Yeates v Aviva Insurance UK Ltd1, the Defendant, D, did not serve notice of appeal within the requisite period of 21 days but rather some 8 months later when enforcement proceedings were commenced. D initially said that he was unaware of the time limit but later disclosed a letter from his solicitors which drew his attention to the deadline.
The Court of Appeal refused to extend the time for appealing. Key factors in the court's decision included the fact that D had "[buried his] head in the sand" and had not been "full and frank" with the court in not revealing that his solicitors had advised him of the deadline for a notice of appeal. Moreover, the Court of Appeal declined to take into account the merits of the appeal as the question of whether an extension should be permitted was not finely balanced.
In the second case, Cassa Di Risparmio Della Republica Si San Marino Spa v Barclays Bank plc2, the C served notice of appeal some seven and a half months late. Applying the decision in Smith v Brough3, the Court of Appeal refused permission to appeal. A key factor in refusing permission to appeal was that D had not been warned that any appeal was in prospect. Further, the fact that C was not prepared to appeal without funding, was, the judge stated a "bad reason" for extending the time in which to do so. Interestingly, in contrast to Yeates, where the merits of the appeal were not taken into account, Rix LJ stated that "no court in such a situation decides a question of permission to appeal without having regard to some extent to the merits of the requested appeal."
Irrespective of whether the courts will take the merits of any appeal into account, for now, at least, it appears that litigants can have some confidence in the finality of litigation when the time for appeal has passed.
1. [2012] EWCA Civ 634.
2. [2012] EWCA Civ 1073.
3. [2005] EWCA Civ 261.