Claim No. CL-2024-000182
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
KINGS BENCH DIVISION
COMMERCIAL COURT
Before:
PETER MACDONALD EGGERS KC
sitting as a Deputy Judge of the High Court
Between :
WHITE ROCK CORPORATION LTD
Claimants
– and –
(1) MIDDLE VOLGA SHIPPING COMPANY
(2) NORTH GLOBAL DENIZCILIK ITHALAT VE IHRACAT TICARET LIMITED
Defendants
Approved Judgment
This judgment was handed down remotely at 10.00am on 24 October 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
.............................
PETER MACDONALD EGGERS KC :
Introduction
On 7th August 2025, I handed down judgment allowing the First Defendant’s application contesting the Court’s jurisdiction pursuant to CPR rule 11(1) in respect of the Claimants’ claim against it (“the Judgment”).
When the draft of the Judgment was circulated to the parties on 31st July 2025, I indicated to the parties that “Consequential issues will be dealt with on paper, unless either party requests an oral hearing”.
A number of consequential issues are in dispute between the parties resulting from that decision, in particular concerning (1) the costs of the application, (2) the Claimant’s application for permission to appeal, and (3) the timing of the filing of an Appellant’s Notice.
Neither party has requested an oral hearing. The parties, by their solicitors, have exchanged written submissions as follows:
Sach Solicitors on behalf of the First Defendant filed written submissions by email dated 15th September 2025, 24th September 2025 and 13th October 2025.
Campbell Johnston Clark on behalf of the Claimant filed written submissions by email dated 16th September 2025, 30th September 2025 and 13th October 2025.
I am grateful for these helpful written submissions.
Costs
The First Defendant is entitled to its costs, being the successful party. The Claimant does not dispute this, although Campbell Johnston Clark stated that they did not have instructions to agree that the First Defendant should be awarded its costs.
However, there is an issue about the amount of the summary assessment to be carried out in respect of those costs.
The First Defendant submitted that:
The First Defendant’s costs are £65,790.25 in total, comprising £19,500 in respect of solicitors’ fees and £46,290.25 in respect of disbursements (including £4,937.25 in relation to Russian legal fees, which were not included in the First Defendant’s costs schedule prior to the hearing of the application, but were included subsequently).
These costs are reasonable in amount and reasonably incurred, including the Russian legal fees, which were necessarily incurred in support of the application.
The First Defendant should also have its costs of the consequential issues application.
Taking into account the costs in dealing with consequential issues, the First Defendant’s costs are now £78,850.25.
The Claimant did not make any substantive submissions in respect of the quantum of costs to be summarily assessed.
I consider that the First Defendant’s costs are reasonable and proportionate. In those circumstances, I summarily assess the First Defendant’s costs in the amount of £78,850.25.
Application for permission to appeal
The Claimant applies for permission to appeal. The First Defendant resists the application on the grounds that it is made too late and, in any event, any appeal has no real prospect of success.
There are therefore two separate issues to address in respect of the application for permission to appeal:
Whether the application has been made out of time.
Whether the grounds of appeal relied on by the Claimant have a real prospect of success before the Court of Appeal.
I shall consider each of these issues in turn.
Whether the application for permission to appeal has been made out of time
The First Defendant submitted that the application for permission to appeal is made out of time, because:
By CPR rule 52.3(2)(a), any application for permission to appeal must be made “at the hearing at which the decision to be appealed was made or any adjournment of that hearing” (McDonald v Rose [2019] EWCA Civ 4; [2019] 1 WLR 2828, para. 21).
The common practice of dealing with consequential matters in writing does not have the effect of formally adjourning the matter. To the contrary, paragraph (3) of the McDonald v Rose guidance contemplates the Judge setting a timetable for “written submissions” and then deciding “the question on the papers” after there has been a formal adjournment of the application for permission to appeal.
The Court’s direction that “consequential issues will be dealt with on paper” is consistent with that contemplated procedure. Had the Claimant wished to apply for permission to appeal, it ought to have made this clear before 7th August 2025 so that the matter could be formally adjourned. In fact, the first inkling of any such application to be made was not given until 9th September 2025. That was more than a month after hand-down. It is understood that that indication was given only after the Claimant’s Turkish lawyers had told the Turkish court that the Judgment was under appeal in order to continue detaining the First Defendant’s security that would or might otherwise have been released.
The Claimant submitted that:
The Judgment was handed down at the beginning of the long vacation. There was no “decision hearing” of the type contemplated in McDonald v Rose. There was a formal hand-down in the absence of the parties, and the Court had already indicated that all consequential matters (which obviously include an application for permission to appeal, as well as costs) would be dealt with at a later date (either at a hearing or on paper).
The First Defendant’s point seems to be that, despite the Court’s express direction that all consequential matters were adjourned, the Claimant ought to have applied formally for an adjournment of the hearing to deal with consequential issues, including the application for permission to appeal. That is wrong. It was quite clear that all consequential issues were adjourned, with no date being set (no doubt to give the parties a chance to agree, and to leave open the possibility of matters being dealt with in writing). No more formal order or direction was needed.
Neither party took any steps in connection with consequential issues during the first part of the vacation, and then in September 2025, the parties sought to agree on consequential issues. It became clear that agreement was impossible and the parties made their applications to the Court on 15th and 16th September 2025.
CPR rule 52.3(2) provides that:
“(2) Unless the appeal is within paragraph (1)(c), an application for permission to appeal may be made -
(a) to the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing; or
(b) to the appeal court in an appeal notice.”
Accordingly, the lower court has jurisdiction to grant permission to appeal, on an application by a party, at the hearing at which the decision was made or at any adjourned hearing.
In McDonald v Rose [2019] EWCA Civ 4; [2019] 1 WLR 2828, at para. 21, the Court of Appeal explained the procedure to be followed in the event that an application for permission to appeal is made or intended to be made:
“21. It is the experience of the court that the effect of the rules, as expounded in the authorities referred to above, is often not properly understood by would-be appellants. We think there is value in our summarising in this judgment the effect of those authorities and the procedure that ought to be followed in consequence by parties wishing to seek permission to appeal from the lower court (which is good practice though not mandatory). We would set the position out as follows:
(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: see Sayers v Clarke Walker (Practice Note) [2002] 1 WLR 3095 and Owusu v Jackson [2003] PIQR P13. We call this 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: see Jackson v Marina Homes Ltd [2008] CP Rep 17. The judge, if he or she agrees to the adjournment, will no doubt set a timetable for written submissions and will normally decide the question on the papers without the need for a further hearing. 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). We wish to say, however, that we do not believe that such adjournments should in the generality of cases be necessary. Where a reserved judgment has been pre-circulated in draft in sufficient time parties should normally be in a position to decide prior to the hand down hearing whether they wish to seek permission to appeal, and to formulate grounds and such supporting submissions as may be necessary; and that will often be so even where there has been an ex tempore judgment. Putting off the application will increase delay and create a risk of procedural complications. But we accept that it will nevertheless sometimes be justified.
(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: see Lisle-Mainwaring [2018] 1 WLR 4766.
(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: see Hysaj [2015] 1 WLR 2472. It is worth noting that an application by a party for more time to make a permission application is not the only situation where an extension of time for filing the appellant’s notice may be required. It will be required in any situation where a permission decision is not made at the decision hearing. In particular, it may be that the judge wants more time to consider (see para (2) above): unless it is clear that he or she will give their decision comfortably within the 21 days an extension will be required so as to ensure that time does not expire before they have done so. In such a case it is important that the judge, as well as the parties, is alert to the problem.
(6) As to the length of any extension, Brooke LJ says in Jackson v Marina Homes Ltd [2008] CP Rep 17, para 8 that it should normally be until 21 days after the permission decision. However, the judge should consider whether a period of that length is really necessary in the particular case: it may be reasonable to expect the party to be able to file their notice more promptly once they know whether they have permission.”
The application for permission to appeal made to the judge whose decision is sought to be appealed is to be made at the hearing at which the decision is made or at the adjourned hearing. The date at which the decision is made is generally taken to be a reference to the date of handing down of the judgment, including where the judgment has been handed down remotely, and not to the date on which any resulting order is drawn up or sealed (McDonald v Rose [2019] EWCA Civ 4; [2019] 1 WLR 2828, para 21(1); Claydon Yield-O-Meter Ltd v Mzuri Ltd [2021] EWHC 1322 (IPEC), para. 19; see also R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633; [2015] 1 WLR 2472, para. 22, which concerned the meaning of the words “date of the decision of the lower court” in the context of an extension of the time for filing an appellant’s notice).
In the present case, no application was made by the Claimant for permission to appeal prior to or at the time the Judgment was handed down.
Accordingly, unless I had adjourned the hearing of the application for permission to appeal no later than the date of the Judgment on 7th August 2025, I am unable to accede to an application for adjournment afterwards. In McDonald v Rose [2019] EWCA Civ 4; [2019] 1 WLR 2828, at para. 20, Underhill LJ said that “A retrospective application for permission to appeal, where the judgment has been handed down and the hearing has not been adjourned, cannot be considered by the lower court”; this is because the lower court is no longer seised of the matter (para. 21(4); see also Claydon Yield-O-Meter Ltd v Mzuri Ltd [2021] EWHC 1322 (IPEC)).
The question therefore is whether I had adjourned the hearing of any such application for permission to appeal when I circulated the draft judgment on 31st July 2025. At that time, I informed the parties that that Judgment would be handed down on 7th August 2025 and that “Consequential issues will be dealt with on paper, unless either party requests an oral hearing”.
If I had adjourned it, I would have had jurisdiction to entertain the application for permission to appeal at this time and, as explained below, to deal with the application for an extension of time for the filing of an Appellant’s Notice.
The Claimant submitted that this direction was in reality or effect an order for the adjournment of the hearing for its application for permission to appeal. The First Defendant points out that no application for permission to appeal was intimated by the Claimant until 9th September 2025.
In my judgment, I am not able, at this time, to determine the application for permission to appeal, because the application was not made prior to or at the time of the handing down of the Judgment on 7th August 2025 and because no order was made for the adjournment of the hearing of that application (the decision hearing) by 7th August 2025. My reasons are as follows:
As contemplated by the Court of Appeal in McDonald v Rose, any adjournment of the decision hearing for the purposes of considering an application for permission to appeal by the lower court presupposes first that a party has either indicated that it intends to apply for permission to appeal or that it is considering doing so, that that party applies to the lower court for an adjournment, and that the lower court “formally” adjourns that hearing.
Although I directed on 31st July 2025 that “consequential issues” would be dealt with on paper, such issues did not necessarily refer to an application for permission to appeal in circumstances where, at that time, I did not know and had not been informed that the Claimant intended to apply for permission to appeal or was considering such an application (cf. Afan Valley Ltd v Lupton Fawcett [2024] EWHC 2498 (KB), para. 2-4). Of course, at the time I circulated the draft judgment, there would have been no reason why the Claimant would have indicated such an intention.
If the Claimant was intending to make or considering making an application for permission to appeal, which application the Claimant was not prepared to make at the date of the handing down of the Judgment, it was incumbent on the Claimant to seek an adjournment expressly (Claydon Yield-O-Meter Ltd v Mzuri Ltd [2021] EWHC 1322 (IPEC), para. 19). This is especially so where the parties had one week to consider the Judgment and its implications between the circulation of the draft Judgment and the handing down of the Judgment.
No application was made for an adjournment of the decision hearing by the Claimant prior to the handing down of the Judgment.
If the Court were to order an adjournment of a hearing, it should do so expressly whether it is making the order on its own initiative or on the application of a party.
For what it is worth, in making a direction in respect of “consequential issues”, my intention was not to adjourn the decision hearing for the purposes of considering an application for permission to appeal. Of course, I would have been aware of the possibility that the Claimant might have been contemplating an application for permission to appeal upon review of the draft Judgment, but I would not have made an order for adjournment, unless I had been informed of the Claimant’s intentions in this respect.
In these circumstances, there could have been no adjournment of the decision hearing to deal with such an application. I should make it clear that had such an application for an adjournment been made, I would have granted it.
In coming to this conclusion, I note that my decision may be regarded as being at odds with the decision of HHJ Paul Matthews in Terna Energy Trading doo v Revolut Ltd [2024] EWHC 1524 (Comm). In that case, upon circulating a draft judgment to the parties, the judge invited the parties to seek to agree the wording of the order “before the hearing”, and in default of such agreement, the judge invited written submissions on consequential matters in accordance with a stipulated timetable. In that case, the judge held that he had adjourned the hearing of the application for permission to appeal, stating at para. 11 that:
“The respondent says that my view as there expressed is wrong, or at least inapplicable to the present case. McDonald v Rose requires that the hand-down hearing be “formally adjourned”, and here there was, it says, no formal adjournment. I accept that I did not use any express words such as “I hereby adjourn this hearing”. Nevertheless, that is what I meant by setting a timetable for written submissions on consequential matters (which were not restricted in any way). In my judgment, I did adjourn the hand-down hearing, although to a written procedure instead of to an oral one. Accordingly, I hold that I have jurisdiction to deal with an application by the applicant, contained in the written submissions for which I provided, for permission to appeal.”
Of course, in the present case, unlike the learned judge in Terna Energy Trading doo v Revolut Ltd, I had no intention to grant an adjournment. However, I doubt whether that is necessarily the principal consideration in determining whether there has been an adjournment.
On the other hand, in Elbanna v Clark [2024] EWHC 1471 (KB), the relevant draft judgment was circulated to the parties on 11th March 2024; on 14th March 2024, the judge gave permission to the defendant to share the judgment with his lay client’s insurer; the parties were told of the date and time of hand down with a request that they seek to agree an order in relation to costs. On the day of the hand down, the defendant’s solicitor wrote by e-mail to the court saying that they had not had an opportunity to discuss or review matters with counsel and “there is the issue of the costs order and other matters to be addressed and we have not yet been party to or received any communications on this point”, and suggesting that the hand down was delayed until another day. Counsel for the claimant sent a draft minute of order to the defendant’s counsel on the same day. The claimant invited the court to hand down the judgment on the basis that the parties would seek to agree consequential orders and request a hearing if they were unable to agree. The judge indicated that he intended to deliver the judgment and to deal with consequential matters at a hearing, if necessary, on another day. There was no indication by the defendant that he was seeking permission to appeal or an extension of time in which to do so.
At para. 15-16, Sweeting J held that he had no jurisdiction to dispose of the application for permission to appeal, stating that:
“15. I consider that the central question is whether the defendant’s solicitors e-mail of the 20th of March 2024 could be regarded as an application to adjourn the decision hearing itself notwithstanding that the hand down of the judgment took place on that day.
16. If the e-mail request was intended to raise permission to appeal as a reason for delaying the hand down of judgment then it was wholly opaque on the point. Any such construction would also be inconsistent with what followed since the hand down went ahead, there was no application to list the matter for a hearing within the time limit for appealing or to extend that period; instead the defendant made an application directly to the Court of Appeal. The suggestion that there might be a further hearing of an adjourned decision hearing appears to have arisen as a result of the closing of the appeal to the Court of Appeal by the Master. The guidance given in McDonald v Rose, helpfully reproduced in the White Book, was simply ignored by the defendant. For my part I intended to give the parties further time in which to seek to agree an order carrying the judgment into effect and dealing with the issue of costs. I conclude that the hand down on the 20th of March 2024 was the ‘decision hearing’ and that this court no longer has jurisdiction to hear an application for an extension of time or for permission.”
It seems to me that these two decisions appear to offer different solutions to what is fundamentally the same problem. For the reasons given above, if there is a conflict between these two decisions, I prefer the approach adopted by Sweeting J in Elbanna v Clark.
Therefore, I am unable to deal with the application for permission to appeal because I lack the jurisdiction to do so.
Do the Claimant’s grounds of appeal have a real prospect of success?
If my decision above is wrong and I do have jurisdiction to determine the Claimant’s application for permission to appeal, I will now consider that application.
I should note that the Claimant did not provide draft grounds of appeal as required by the Commercial Court Guide, para. J12.3, but I believe I was able to discern the substance of the grounds relied on by the Claimant in support of its application.
The Claimant submitted that it is entitled to permission to appeal on the basis that the Court erred in law in the following respects, and on the basis that the following grounds of appeal meet the low threshold of a real prospect of success under CPR rule 52.6(1)(a).
The Court erred in law in finding that this was not a Kaefer limb (iii) case (referring to Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10; [2019] 1 WLR 3514). The profoundly curious “head charters” that had been produced by the First Defendant cast doubt on all features of the latter’s case. When the First Defendant’s evidence, which was compromised as a whole in its probative force by the inexplicable and unexplained features of the supposed “head charters”, was balanced against the features directly favouring the Claimant’s case, and in particular the express identification of the First Defendant as Owner in the protocols of delivery, the position either favoured the Claimant’s case or this was a Kaefer limb (iii) case.
At paragraph 76 of the Judgment, the Court identified the matters that (it held) demonstrated that the Claimant contracted with North Global and not with the First Defendant. The Court erred in law in its treatment of (a) the lie in the Recap about the Vessel having no Russian connections and (b) post-contractual events.
The Recap states that the Owners confirm that the vessels have no Russian connection. In fact, the Vessels had strong Russian connections (at least three of the Vessels were owned by the First Defendant, a Russian company, and the First Defendant was bareboat charterer of the fourth vessel). In other words, whoever was responsible for the Recap on the Owner’s side was dishonest. However, the Court has treated this feature as supporting the First Defendant’s case that it cannot have been, or at least was not, the contractual counterparty to the Claimant. The warranty is breached as much by a charterparty with North Global as it is breached by a charterparty directly with the First Defendant. The inclusion of the false warranty favours neither over the other. The Court drew the wrong conclusion from the false warranty: it should have counted against, not in favour of, the First Defendant.
Although the Court rightly accepted that emails of 27th June 2022 demonstrated that the Claimant may not have known with whom they were contracting at the time of the Charterparty, the Court went on to hold that subsequent events (namely the response to being told that North Global was charterers’ counterparty) were relevant to answering the question of who the contractual counterparty was. That cannot be right, as there was no plea of estoppel, and events after entry into the Charterparty are simply irrelevant to the question of the identity of the contracting party.
The First Defendant submitted that the application for permission to appeal should be refused in any event, because neither ground of appeal relied on by the Claimant has any real prospects of success for the purposes of CPR rule 52.6, either individually or cumulatively.
The Court’s decision in allowing the application to contest jurisdiction is one as to whether or not a claimant has a “good arguable case”. That is an “evaluative decision” (Berge Bulk Shipping Pte Ltd v Taumata Plantations Limited [2025] EWCA Civ 876, para. 54). Appellate courts will rarely interfere with decisions of that nature. In particular, the appeal court will “not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the judge’s treatment of the question to be decided, “such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion”” (In re Sprintroom Ltd [2019] EWCA Civ 932, para. 76). There was no such “identifiable flaw” in the Judgment.
The first question that the Court had to consider was whether or not, in its evaluation of the matter as a whole, either party had the better of the argument on “good arguable case”. If so, then that would be a Kaefer limb (i) case, and the application would either be granted or refused. Only if no reliable assessment can be made of whether or not a party has a “good arguable case” does Kaefer limb (iii) apply. The Court carried out a detailed analysis of the facts and concluded that the First Defendant had the better of the argument, i.e. this was a Kaefer limb (i) case. There was no flaw of law or logic that might lead to that decision being interfered with on appeal.
As to the first ground of appeal, the Court had first to consider whether the terms of the Charterparty sufficiently identified the parties to it. It was only “if that is not sufficient to answer the question at hand” that one would look to the surrounding circumstances. The Court was able to reach the conclusion that the Charterparty was fixed between the Claimant and North Global by reference to its terms, in particular those of the recap and the Q88. That conclusion was sufficient for the First Defendant’s application to succeed. It was unnecessary for the Court to go on to consider the wider circumstances, including the disputed status of the head charters. Against that background, the criticisms made by the Claimant of the Judgment fall away.
As to the second ground of appeal, the identity of the parties is to be determined objectively having regard to their intentions. The relevance of the Recap clause confirming that the Vessel had no connections with Russia was that it negatived a mutual intention that the First Defendant be a contracting party. The question is not whether or not that warranty was breached. It is whether both parties objectively intended the Charterparty to be concluded with the First Defendant. The Court was right to reason that they could not have done so, in light of the terms of that warranty. The Claimant’s submission that the Court ought not to have taken account of post-contractual events is difficult to reconcile with the fact that the delivery certificates were at the forefront of its own case. But in any event, this submission is wrong in law.
In any event, the appeal has no real prospects of success. The Court set out a number of reasons for its conclusion that the First Defendant had the better of the argument that the Charterparty was concluded with North Global. The Claimant does not and cannot criticise the significant majority of those reasons, including the most important ones concerning the objective ascertainment of the parties from the recap and Q88. The Court made it clear that had it “limited [the] examination to the Recap and the Q88 forms, I would have come to the conclusion that the Charterers’ counterparty is North Global, not Middle Volga”. That conclusion was sufficient for the First Defendant’s application to succeed and would be enough for any appeal by the Claimant to fail.
Assuming that I had jurisdiction to dispose of the application for permission to appeal, I would have refused permission for the reasons given by the First Defendant. In particular, it seems to me that the Claimant’s proposed grounds of appeal are in reality a challenge to the assessment of the evidence and how, as a result, the principles in Kaefer should respond. It is not said, at least as I understood the application, that I misinterpreted the principles in Kaefer.
Similarly, insofar as it is said that I placed too much reliance on the provision in the Recap as to the absence of Russian connections, the challenge is not to the interpretation of the provision, but to its evidential effect. Accordingly, given that the prospect of successfully appealing against a decision based on the assessment of factual evidence is more onerous than in the case of a question of law or construction, I do not consider that there is a real prospect of success on this ground.
As to the ground of appeal relied on by the Claimant that it was not permissible to take into account post-contractual matters in identifying the contracting party to the Charterparty, as far as I recall, this was not an objection raised at the hearing. In any event, had I limited my assessment of the evidence to matters pertaining to the conclusion of the Charterparty, I would not have come to a different decision. Therefore, I do not consider that the Claimant has a real prospect of success on appeal.
Therefore, if I had jurisdiction to determine the application for permission to appeal, I would have refused such permission.
Conclusion on the application for permission to appeal
For the reasons explained above, I have no jurisdiction to determine the application for permission to appeal. If I had such jurisdiction, the application would have been refused.
In these circumstances, I do not need to address the First Defendant’s contingent application that any permission should be granted on condition that the Claimant pay the First Defendant’s costs and provide security for the costs of the appeal.
The time for the filing of the Appellant’s Notice
The Claimant applies for an extension of time to apply to the Court of Appeal for permission to appeal by means of the filing of an Appellant’s Notice, in the event that I decline the Claimant’s application for permission.
CPR rule 52.12 provides that:
“(1) Where the appellant seeks permission from the appeal court, it must be requested in the appellant’s notice.
(2) The appellant must file the appellant’s notice at the appeal court within -
(a) such period as may be directed by the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing (which may be longer or shorter than the period referred to in sub-paragraph (b)); or
(b) where the court makes no such direction, and subject to the specific provision about time limits in rules 52.8 to 52.11 and Practice Direction 52D, 21 days after the date of the decision of the lower court which the appellant wishes to appeal.”
The Claimant submitted that:
The Court’s determination on paper of these consequential issues will take place at the adjournment of the hearing at which the Court’s decision was made.
The Court is invited to direct, pursuant to CPR rule 52.12.(1)(a), that the time period for filing of the Appellant’s Notice is 14 days from the date of the Court’s decision on the application for permission to appeal is communicated to the parties.
The Claimant does not require an extension of time for the filing of the Appellant’s Notice. Instead, the Claimant applies for a direction as to the time for filing the Appellant’s Notice, the Appellant’s Notice is to be filed 14 days, not 21 days, after the determination of the application for permission to appeal.
There is therefore no need for an application for relief against sanctions. In any event, if, which is emphatically not accepted, this is an out-of-time application for an extension, then in relation to each of the three considerations referred to in Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926:
The breach is not significant, it is short. In the first half of the long vacation neither party rushed to sort out consequential issues.
The obvious explanation is that the Claimant understood the Court’s email direction as being to adjourn the permission to appeal application.
All the circumstances militate in favour of a short extension of time. It is unlikely to cause any additional delay.
The First Defendant submitted that:
The Claimant belatedly indicated an intention to make an application to the Court for permission to appeal for the first time on 9th September 2025. The possibility of a such an application was therefore first raised 32 days after judgment was handed down, outside the standard 21 days for the filing of an Appellant’s Notice under CPR rule 52.12.
The application now made for an extension of time is made too late, and the Court should not entertain any such application.
The Claimant will need an extension of time for lodging of the Appellant’s Notice: see paragraphs 28 to 32 of their submissions. As paragraph (5) of the McDonald v Rose guidance makes clear, even if (contrary to the above) the Court has adjourned the “decision hearing”, the 21 day period in CPR rule 52.12 will run from the hand down date. That period therefore expired on 28th August 2025.
The Claimant’s application is therefore an “out of time” application for a retrospective extension, governed by the Denton three-stage test (R (Hysaj) v Secretary of State for the Home Department [2015] 1 WLR 2472). There is no prospect at all of the Claimant satisfying that test:
At the first stage, the breach is significant. The Claimant first applied for a retrospective extension of time on 16th September 2025, 19 days after the expiration of the 21 day period in CPR rule 52.12. The Claimant has had nearly double the permitted time to make this application.
At the second stage, no explanation has been given for that significant breach. The McDonald v Rose guidance is or should be well-known to litigators in this Court.
At the third stage, “all of the circumstances” militate against a retrospective extension. The application is long out of time and appears to have been made as an afterthought to allow the Claimant to hold onto the security in Turkey. In any event, the Claimant’s grounds of appeal have no real prospects of success.
As is evident from the Court of Appeal’s decision in McDonald v Rose, the requirement to extend time for the filing of an Appellant’s Notice is distinct from the adjournment of the decision hearing. This means that even if the Court were to adjourn the decision hearing for the purpose of entertaining an application for permission to appeal, that in itself would not amount to an extension of time for the filing of an Appellant’s Notice.
By reason of CPR rule 52.12(2)(a), the lower court has the jurisdiction to grant an extension of time either at the date of the decision hearing or at the time of the adjourned hearing. In the current case, there was no adjournment of the decision hearing. Accordingly, I do not have jurisdiction to dispose of an application for an extension of time for the filing of the Appellant’s Notice (Elbanna v Clark [2024] EWHC 1471 (KB), para. 16).
If I am wrong and I do have jurisdiction to deal with the application for an extension of time, I would have granted the application to extend time by 21 days from today’s date.
The application on this premise would have been out of time, because absent an extension, the time limit for filing an Appellant’s Notice expired 21 days after the date of the handing down of the Judgment, i.e. on 28th August 2025 (CPR rule 52.12(2)(b)). Applying the Denton considerations,
The failure to comply with the requirements of CPR rule 52.12(2) might be regarded as significant, rather than serious (McDonald v Rose [2019] EWCA Civ 4; [2019] 1 WLR 2828, para. 27-28).
As indicated by the contrasting decisions in Terna Energy Trading doo v Revolut Ltd [2024] EWHC 1524 (Comm) and Elbanna v Clark [2024] EWHC 1471 (KB), the failure to comply was the result of an understandable misapprehension (though I note McDonald v Rose [2019] EWCA Civ 4; [2019] 1 WLR 2828, para. 32).
Notwithstanding the above, if the correct procedure had been followed, the application for an extension of time would have been made at this time, with the result that no time would have been lost by any failure on the part of the Claimant. In other words, there has been no prejudice to the First Defendant.
Conclusion
For the reasons explained above, I have reached the following conclusions:
The Claimant shall pay the First Defendant’s costs, which are summarily assessed in the amount of £78,850.25.
I have no jurisdiction to determine the Claimant’s application for permission to appeal. If I had such jurisdiction, I would have refused the application.
I do not have jurisdiction to determine the Claimant’s application for an extension of time for the filing of an Appellant’s Notice. Had I had such jurisdiction, I would have allowed the Claimant’s application for an extension of time.
In these circumstances, if it wishes to pursue an application for permission to appeal, the Claimant will have to make the appropriate applications to the Court of Appeal.