CPR 52.18: Applications To Set Aside Permission Or To Impose Conditions Refused

Extension of time

We reported recently on HHJ Klein’s dismissal of the appeal in this Solicitors Act dispute between Stewarts Law (“the Respondent”) and their former client, Mr Ainsworth (“the Appellant”). Two weeks prior to that decision Mr Justice Roth determined applications by the Respondent:

  • to set aside the order granting the Appellant permission to appeal on grounds that it was out of time pursuant to CPR 52.18(1)(b); and
  • if the appeal was allowed to proceed, for an order under CPR 52.18(1)(c) that it be conditional on payment of the full amount ordered by the costs judge.

The Judge dismissed both applications.

Application to set aside CPR 52.18(1)(b)

Applying the Mitchell and Denton principles to determine whether to grant the Appellant a retrospective extension of time he found that a delay of 28 days in submitting the appeal was “on the borderline of being serious, and perhaps should be so regarded, but I do not think that it was significant.

He accepted the Appellant’s “very good explanation” that he had, through his representatives, attempted on two occasions to lodge the appeal within time but had been given erroneous information by court staff that it would be rejected.

Finally, he concluded that in all the circumstances it was just to grant the extension and, as a consequence, refuse the Respondent’s application to set aside the grant of permission.

“This was an appeal against a costs assessment brought against a well-established firm of solicitors. There is nothing remotely emotional about those proceedings and the substantive appeal itself is going to be very short: the hearing estimate is just one hour. There is no possible prejudice even in determining the question of an extension two weeks before the substantive appeal is due to be heard.”

Imposition of conditions CPR 52.18(1)(c)

Mr Justice Roth considered the following as relevant factors to weigh:

  • a stay had been applied for by the Appellant but refused;
  • payment of half the total sum assessed was made prior to the assessment;
  • the Appellant is not resident in the UK and in family proceedings he had been found to have been dishonest and evasive regarding his assets; however
  • there was no evidence that he would deliberately seek to put his assets out of the way of enforcement of the debt created by his liability for costs.

Of most significance however was the Respondent’s failure to make the application promptly.

“In my judgment, particularly coming from experienced litigation solicitors who were, for their part, complaining about late conduct by the other party, that is clearly not an application that could be described as being made promptly. Moreover, it has had the effect that the appeal is now listed to be heard in 13 or 14 days’ time, meaning that the court is left considering the proposition of making an order for payment of what, even for a wealthy individual, is a substantial sum of money within seven days. Any later period would effectively be futile, yet normally an order of this kind would allow the party subject to the order 14 days to pay.”