The issue of whether the “Denton” principles applied to applications for permission to appeal out of time were considered briefly by the Court of Appeal in Hart -v- Burbridge  EWCA Civ 992
The appellants appealed out of time in relation to an order that there had been undue influence. The judgment was given on the 12th June 2013 and the order eventually drawn up on the 23rd July 2013. The appeal was filed on the 14th August 2013 and served on the 23rd August 2013.
Permission to appeal was given by the single judge , but with no express statement that an extension of time was granted. The appellant, in fact, lost on the appeal, however there was a Respondents’ Notice in relation to the appeal being out of time. Vos L.J. stated:
- By their Respondents’ Notice, all the claimants applied to set aside the grant of permission to appeal on the grounds that the Appellants’ Notices were filed 6 weeks late, and the skeleton argument was misleading. On 15th May 2013, Lewison LJ declined to set aside the permission to appeal, and adjourned the question of an extension of time to the full appeal. The claimants argued that an extension of time ought not to have been granted because the dicta of Brooke LJ at paragraph 21 in Sayers v. Clarke Walker  3 All ER 490 required the court to have regard to the criteria for the grant of relief from sanctions under CPR Part 3.9 when considering such an extension.
This issue was considered later in teh judgment.
Should the grant of permission to appeal be set aside?
- It was implicit in Lewison LJ’s grant of permission to appeal that he also granted the necessary extensions of time requested in the Appellants’ Notices. The members of the court expressed a unanimous view in the course of argument that they too would have extended time for the filing of the Appellants’ Notices had they been granting permission to appeal on paper. This expression of opinion did not dissuade Mr Auld from pursuing this aspect of his Respondents’ Notice, because he said that confusion existed as to whether the dictum in Sayers v. Clarke Walker, to which I have referred, remains good law after the change in the provisions of CPR Part 3.9 in April 2013, and the very recent decision in Denton v TH White Limited  EWCA Civ 906. In my judgment, it cannot any longer be right to say that the court should have regard to the lengthy list of factors in the old CPR Part 3.9(1) when considering whether to grant permission to extend time for the filing of an Appellant’s Notice. It would be inappropriate, however, to comment in the absence of full argument, on whether the new approach to applications for relief from sanctions set out in Denton is properly to be regarded as relevant to an extension of time in these circumstances. That too must await another case. I can say, however, that the court in Denton sought to discourage satellite litigation of all kinds, and to encourage parties to agree to reasonable requests for extensions under the new CPR Part 3.8(4). In this case, the delay was justified since Mr and Mrs Burbidge needed time to consider the complex order actually made by the judge on 23rd July 2013 in drafting their Grounds of Appeal. Lewison LJ must be taken to have considered that point. In my judgment, there are no grounds to set aside the extension of time he granted.