The recent decision by the Isle of Man Staff of Government Division in Old Mutual International v Leonteq Securities & Otr (judgment dated 19 June 2020) offers a timely reminder to litigants and their advocates as to the strict time limits for an appeal. Indeed, Old Mutual illustrates that the Staff of Government Division is ordinarily reluctant to grant an extension of time to appeal notwithstanding that an advocate has miscalculated the applicable time limit.
The Rules of the High Court of Justice 2009
Rule 14.6(2) states that a prospective appellant must file the appeal notice within:
a. such period as may be allowed by a relevant statutory provision;
b. where there is no such provision, such period as may be directed by the lower court; or
c. where the lower court makes no such direction, the following period after the date of the decision of the lower court that the appellant wishes to appeal -
i. 42 days, in the case of a final judgment or order;
ii. 14 days, in any other case.
Most appeals to the Staff of Government are filed under sub paragraph (c), but Old Mutual and other recent cases have demonstrated confusion by appellants as to what constitutes a 'final judgment or order'.
42 days or 14 days to appeal?
The answer to this question depends upon whether the judgment of the lower Court finally disposes of all issues between the parties, whichever way the Court finds. If, for example, the decision of the lower Court has disposed of the entirety of the proceedings then the time period for an appeal is 42 days. However, if not, then the time limit is 14 days.
By way of an example, in a debt recovery claim which goes to trial the Court will decide whether the debt is due or not. Irrespective of which way the Court finds, finality is brought to proceedings and so the appeal limit would be 42 days from the date of the Court's judgment. However, in contrast, where the Court's judgment concerns (for example) an application to strike out the claim, whilst there would be finality if successfully struck-out, the other option would be to dismiss the application and the matter proceed to a full trial. As such, because finality cannot be achieved by both options, only one, the 14 day appeal time limit applies.
This was the issue at hand in Old Mutual after the Court of first instance had granted an application to set aside a Claim Form in respect Leonteq on the basis of a lack of jurisdiction. In this case, the appellant believed that it had 42 days to appeal. However, the Staff of Government Division held that the 42 day time limit did not apply because had the Court of first instance dismissed the application for strike out and declared that it did have jurisdiction, then the proceedings would have continued. The issues between the parties were therefore not capable of being finally disposed of whichever way the Court found, and therefore the correct time limit for any appeal was 14 days.
Can the court retrospectively extend the time limit?
Whilst the Staff of Government Division is able to extend the time limit for an appeal, it is rare that this discretion is exercised. Applications will be closely scrutinised, and when considering an application for an extension of time to appeal the Court will consider issues such as the length of the delay, why it has occurred and the prejudice which a respondent may suffer if an application is granted. The Court has routinely held that a mistake is not a valid reason for a delay, whether the mistake is made by a party legally represented or not. In this regard the Court has highlighted that the rules concerning appeal time limits are clear, publicly available, and that there are no special rules for a litigant in person over those legally represented.
The limited nature of the availability of extensions of time to appeal is succinctly illustrated in Old Mutual, whereby the Staff of Government refused to grant an extension of time for the appeal, considering that the prospective respondent should not be penalised for the other party's failure to comply with Rule 14.6(2)(c).
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.