UK: Know When To Apply For Permission To Appeal To The Court Of Appeal: Time Runs From When Judgment Is Handed Down, Not When The Lower Court Refuses Permission

Last Updated: 28 January 2019
Article by Herbert Smith Freehills

A recent Court of Appeal decision clarifies the rules on applying for permission to appeal to the Court of Appeal – which, the court noted, are often not properly understood by would-be appellants: McDonald v Rose [2019] EWCA Civ 4.

The decision underlines the important practical point that the 21 day time limit for applying for permission runs from the date of the decision to be appealed – which, in the case of a reserved judgment, is the date it was formally handed down. Time does not run from the date the lower court's order is sealed or (where the party has first applied to the lower court for permission, as is usual) the date the lower court refuses permission to appeal.

If a party wants more time to file its application with the Court of Appeal, it must seek an extension of time from the trial judge, either when the judgment is handed down or when requesting an adjournment of the hand-down hearing (so as to give it more time to apply to the lower court for permission). An adjournment in itself will not extend time.

It is possible to apply to the Court of Appeal to extend time retrospectively, but this is treated as an application for relief from sanctions and therefore the three-stage test from Denton v TH White Ltd  [2014] EWCA Civ 906 (considered here) will apply.


CPR 52.3(2) provides that an application for permission to appeal may be made: to the lower court at the hearing at which the decision to be appealed was made; or to the appeal court in an appeal notice.

Under CPR 52.12(2), the appeal notice must be filed within 21 days after the date of the decision of the lower court which the appellant wishes to appeal – or such longer or shorter period as may be directed by the lower court.

The underlying claims in the present case arose out of a dispute between siblings in relation to the distribution of their parents' estate. The trial was heard at the Business and Property Court in Cardiff. In accordance with the usual practice, the judge circulated a draft judgment to the parties and notified them that the judgment would be handed down two days later, on 9 March 2018, and that their attendance at court was not required.

The applicant's solicitors wrote to the court on 8 March to say that their client was considering seeking permission to appeal and asked the judge to adjourn the hearing the next day to enable their client to make that application. They did not seek any extension of the default 21 day time limit for filing an appeal notice with the Court of Appeal.

The court notified the parties that the application for permission had been adjourned for 14 days from 9 March and was to be dealt with by way of written submissions. The parties filed their written submissions on 23 March and, on 18 April, the judge refused permission to appeal.

The applicant filed his appellant's notice on 9 May, ie 21 days after the judge's decision on the permission application. He subsequently applied to extend the 21 day time limit retrospectively.


The Court of Appeal (Underhill, Richards and Coulson LJJ) confirmed that the appeal notice was filed out of time. It said this would have been a borderline case as to whether time should be extended, but in any event refused permission on the basis that the appeal would have no real prospect of success.

Before addressing the facts of the case, the court noted that its experience was that the rules on seeking permission to appeal were often not properly understood by would-be appellants. It therefore summarised the effect of the relevant authorities and the procedure that should be followed, including the following points:

  1. Time begins to run under CPR 52.12 on 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.
  2. A party who wishes to apply to the lower court for permission to appeal should normally do so at the decision hearing itself. Where the judgment is to be handed down and counsel have been excused from attending, that can be done by applying in writing before the hearing.
  3. If (exceptionally) a party is not ready to make an application at the decision hearing, it must ask for the hearing to be adjourned to give it more time to do so. The judge will then set a timetable for written submissions and will normally decide the question on the papers without the need for a further hearing.
  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 they should also seek an extension of time to file the appeal notice. Otherwise they risk running out of time before the permission decision is made. An adjournment of the decision hearing does not automatically extend time.

The court also noted (although the point was not addressed in the authorities considered by the court) that, if the judge announces his or her decision with reasons to follow, that too will start time running. In those circumstances it should be standard practice for the court to adjourn the decision hearing and extend time for filing the appeal notice until a specified period after the reasons are given.

In the present case, the Court of Appeal noted that, by the time of the hearing, the applicant's counsel had accepted that the appeal notice was filed out of time, as the 21 day time limit began to run when the judgment was handed down on 9 March. The court said he was right to do so.

As to whether the court should extend time, it was common ground that the application for a retrospective extension was an application for relief from sanctions (see R (Hysaj) v SoS for the Home Department  [2014] EWCA Civ 1633, considered here). Accordingly, the Denton three-stage test applied, namely:

  1. the seriousness and the significance of the failure to comply with the rules;
  2. why the default occurred;
  3. an evaluation of all the circumstances of the case, so as to enable the court to deal justly with the application.

In this case the court noted that the failure was serious and relatively significant, and there was no good reason for it. On a consideration of all the circumstances, it would have been a borderline case for relief. However, because of how the case was listed, the court was in a position to consider the merits of the application for permission to appeal more fully than would normally be appropriate. It concluded that the appeal would have no real prospect of success in any event, and therefore it did not need to reach a definitive view on the question of an extension.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions