Mr Justice Hacon finds that procedures for applying for permission to appeal are not altered by the COVID-19 Protocol.
In Claydon v. Mzuri,[1] Mr Justice Hacon of the High Court has found that the COVID-19 Protocol does not alter the procedure for appeal applications if a decision is handed down remotely and the parties do not attend. Notably, the Judge clarified that the remote nature of the relevant hearings and the handing down of the trial judgment had no bearing on the proper approach to be followed in the context of seeking permission to appeal.
Background
The parties included Claydon, a company that manufactures and sells agricultural machinery, and Mzuri, a company that competes in the same market. Claydon alleged that Mzuri infringed two of its patents. The patents in suit were UK Patent No. 2 400 296 for an invention entitled “Improved seed drill” and European Patent UK No. 2 051 576, which claims another invention of the same title. Mzuri counterclaimed for revocation of the patents.
Mr Justice Hacon handed down his judgment in the trial of the action remotely on 22 April 2021 (in which, inter alia, Claydon’s claim for infringement of the two patents was dismissed).[2] The parties did not attend on that date and no order was sought from the Court at that point in time in relation to consequential matters.
On 13 May 2021, Claydon’s solicitors wrote to Mzuri’s solicitors enclosing a draft of a proposed order in relation to those consequential matters, including a reference to Claydon seeking permission to appeal the judgment as regards the issue of the validity of one of the patents.
On 14 May 2021, Mzuri’s solicitors replied, asserting that the High Court no longer had jurisdiction to grant permission to appeal since:
- No application had been made at the hearing at which the decision to be appealed was made, pursuant to Civil Procedure Rules (CPR) 52.3(2)(a).
- There was no application to adjourn the date of that decision.
Further, since the 21-day time limit for filing an appellant’s notice (imposed by CPR 52.12(2)(b)) had expired on 13 May 2021, an application to vary that time limit could only be made to the Court of Appeal (pursuant to CPR 52.15(1)).
Judgment
In a decision handed down on 17 May 2021, Mr Justice Hacon rejected Claydon’s arguments based on the COVID-19 Protocol. Claydon’s representatives had argued that either of the following should affect the context of seeking permission to appeal:
- A remote handing down of a judgment under the Protocol does not amount to a hearing at which the decision to be appealed was made within the meaning of CPR 52.3(2)(a).
- The remote handing down of a judgment under the Protocol either:
-
- Automatically adjourns the CPR 52.3(2)(a) hearing
- Means that the hearing must be taken to have been adjourned because the court intended a further hearing if the parties were to be unable to agree an order on consequential matters (as in the present case)
Reviewing the authorities, Mr Justice Hacon also rejected Claydon’s arguments founded on a reading of Create Financial Management LLP v Lee.[3] In particular, the Judge was not persuaded to grant the relief sought by Claydon on the basis that none of the mischiefs to which CPR 52.3(2)(a) is addressed arose.[4]
Instead, the Judge followed and endorsed the approach taken by the Court of Appeal in McDonald v Rose[5] (a decision that was itself based on a careful review of the relevant authorities). The key passage from that case[6] was determinative in disposing of Claydon’s application for permission to appeal and to extend time:
“(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 [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. 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. The judge will usually be able to give his or her decision at the hearing, but there may be occasions where further submissions and/or time for reflection are required, in which case the permission decision may post-date the decision hearing.
(3) If a party is not ready to make an application at the decision hearing it is necessary to ask for the hearing to be formally adjourned in order to give them more time to do so… 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)….
(4) If no permission application is made at the original decision hearing, and there has been no adjournment, the lower court is no longer seized of the matter and cannot consider any retrospective application for permission to appeal…
(5) Whenever a party seeks an adjournment of the decision hearing as per (3) above they should also seek an extension of time for filing the appellant’s notice, otherwise they risk running out of time before the permission decision is made. The 21 days continue to run from the decision date, and an adjournment of the decision hearing does not automatically extend time… [An application for an extension of time] will be required in any situation where a permission decision is not made at the decision hearing”.
Mr Justice Hacon explained that “In the normal course, when consequential matters if not agreed are adjourned to be heard, or decided on the papers, on a date after a judgment is handed down, the parties by consent seek an order adjourning the hearing at which the decision to be appealed is made until the date of the court’s ruling on consequential matters. This is often together with a direction that the period of 21 days for filing an appellant’s notice shall run from the date of that future ruling”. However, such a sequence of events did not occur in this matter and this process is in fact frequently disregarded.
Indeed, even in McDonald v Rose, the Court of Appeal had pointed out that “It is the experience of the court that the effect of the rules … is often not properly understood by would-be appellants”.
Practical Implications
This decision is an important reminder that parties absolutely must pay attention to the precise procedure for seeking permission to appeal, and the relevant time limits applied by CPR Part 52 — regardless of the COVID-19 Protocol.
[1] Claydon Yield-O-Meter Ltd v Mzuri Ltd and Anor [2021] EWHC 1322 (IPEC).
[2] See Claydon Yield-O-Meter v Mzuri Ltd & Anor [2021] EWHC 1007 (IPEC)).
[3] Create Financial Management LLP v Lee [2020] EWHC 2046 (QB).
[4] Those mischiefs being set out in Lisle-Mainwaring v Associated Newspapers Ltd [2018] EWCA Civ 1470 and referred to in Create Financial Management.
[5] McDonald v Rose [2019] EWCA Civ 4.
[6] At paragraph 21 of the Court of Appeal’s decision and headed “The Correct Procedure”.