Claydon Yield-O-Meter Ltd v Mzuri Ltd & Ors (Rev 1)

On 22 April 2021 I handed down my judgment in the trial of this action. A draft of the judgment had been sent to counsel on 19 April 2021. The Claimant’s claim for infringement of two patents was dismissed. The judgment was handed down remotely pursuant to the Covid-19 Protocol, being circulated on that date to the parties’ representatives by email and made public by release to Bailii.

On 22 April 2021 I was hearing a trial in other proceedings. The parties were informed that no attendance was required on that date to deal with matters consequential to the judgment.

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. No such order was sought by either side in the present case.

On 13 May 2021 the Claimant’s solicitors wrote to the Defendants’ solicitors enclosing a draft of a proposed order. It included a reference to the Claimant seeking permission to appeal insofar as the judgment related to the validity of one of the patents in suit.

On 14 May 2021 the Defendants’ solicitors replied, asserting that this court no longer has jurisdiction to grant permission to appeal since no application was made to this court at the hearing at which the decision to be appealed was made, within the meaning of CPR 52.3(2)(a) and there was no application to adjourn the date of that decision. Further, 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).

Late in the afternoon of Friday, 14 May 2021 Mr St Quintin, counsel for the Claimant, sent an email to the court, copied to counsel for the Defendants. The court received written submissions from counsel for the Defendants, Mr Ivison, on Monday, 17 May 2021.

CPR 52.3(2)(a) provides:

CPR 52.15(1) provides:

Mr St Quintin advanced two arguments in his email of 14 May 2021 relating to the Covid Protocol. The first was that a remote handing down of a judgment under the Covid 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 second was that the remote handing down of a judgment under the Covid Protocol either automatically adjourns the CPR 52.3(2)(a) hearing or alternatively in the present case that 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.

I do not accept either of these arguments. I can see no rational basis for treating the handing down of a judgment under the Covid-19 Protocol as being different from the handing down of a judgment in open court in relation to permission to appeal. I accept that there was no hearing in the usual sense of the term on 22 April 2021. But even where a judgment is handed down in open court, it is not unusual for the parties to have been informed by the court that they need not attend and that there will be a subsequent hearing of submissions on consequential matters if not agreed, or alternatively that such matters will be decided by the court in writing. In those circumstances there is no hearing in the usual sense when the judgment is handed down. The question is whether there is nonetheless a hearing within the meaning of CPR 52.3(2)(a). If so, in my view there is also a hearing in that sense when a judgment is handed down under the terms of the Covid Protocol.

Before looking at the law more generally, I refer to a case cited by Mr St Quintin, namely Create Financial Management LLP v Lee [2020] EWHC 2046 (QB) and the further arguments he made by reference to that case.

In Create Morris J gave judgment in an application for an interim injunction. It was handed down in the afternoon of 17 July 2020. The parties considered its terms for about 40 minutes and then the hearing resumed. There was further oral argument and a supplementary judgment. It was apparent that further matters had to be considered and that another hearing would be necessary the following week. One followed on 20 July 2020 at which the judge approved a draft Order. Thereafter the defendants sought permission to appeal. It was recognised by the judge and the parties that a further issue remained outstanding. The judge gave directions for a further hearing which took place on 24 July 2020.

At the hearing on 24 July 2020 the claimant raised the contention that the court had no jurisdiction to give permission to appeal since the application for permission had not been made – it had not been made at the hearing at which the decision to be appealed was made, in compliance with CPR 52.3(2)(a), namely the hearing of 17 July 2020. The defendants submitted that at the close (loosely termed) of the hearing on 17 July 2020, the hearing was adjourned to be continued the following week and was continued on 20 July 2020.

Morris J held that since the issue of permission to appeal was made after he had approved the draft order, even if the hearing of 20 July 2020 was a continuation of the hearing of 17 July 2020, as to which the judge made no final ruling, that hearing came to an end upon his approval of the draft order and the making of the order of 20 July 2020. Consequently CPR 52.3(2)(a) was not satisfied and the judge had no jurisdiction to consider an application for permission to appeal.

Mr St Quintin submitted that none of the mischiefs to which CPR 52.3(2)(a) is addressed, referred to by Morris J, arise in the present case. That is true, but Morris J considered those mischiefs, in his paragraph 40, which he drew from Lisle-Mainwaring v Associated Newspapers Ltd [2018] EWCA Civ 1470. He said that the mischiefs did not arise on the facts before him and yet he still found that the application for permission to appeal was not made at the hearing specified in CPR 52.3(2)(a). His judgment shows that the question whether CPR 52.3(2)(a) has been complied with does not depend on whether, on the facts of the case, the Lisle-Mainwaring mischiefs are prevented by the rule.

Mr St Quintin further submitted that unlike the events in Create Financial, no order has been made dealing with any of the consequences of my judgment of 22 April 2021. He said that I must have anticipated further argument and therefore, by inference, I adjourned the hearing at which the decision to be appealed was made.

Although I have no recollection of what I thought at the time, I assume that I contemplated the possibility of further argument. However, I must also have considered it possible that the parties would agree a form of order and in particular that the claimant may choose not to appeal. I do not see any necessary inference of an adjournment of the hearing.

However, the more substantive answer to Mr St Quintin’s arguments can be drawn from McDonald v Rose [2019] EWCA Civ 4. In his judgment (giving the judgment of the Court) Underhill LJ considered several authorities including Sayers v Clarke Walker [2002] EWCA Civ 645, Owusu v Jackson [2002]

Thus, the hearing at which the decision to be appealed was made, within the meaning of CPR 52.3(2)(a), is the hearing at which the judgment is handed down by the lower court. Where the handing down is a formality and the parties are not required to attend, it still constitutes a hearing, still the hearing referred to in CPR 52.3(2)(a). That hearing can be adjourned for the purpose of hearing applications for permission to appeal, but it must be done formally by the court following an application by at least one of the parties. Where that happens, an application for permission to appeal will be treated as being made at the hearing referred to in CPR 52.3(2)(a). If there has been no such adjournment, the lower court has no jurisdiction to consider an application for permission to appeal at a subsequent hearing.

Further, even if an adjournment has been granted, unless the lower court also grants an extension of time to file an appellant’s notice, the time for doing so expires 21 days after the date on which the judgment was handed down.

It follows that in the present case, first, I have no jurisdiction to consider the Claimant’s application for leave to appeal. Secondly, even if I had such jurisdiction, the time for filing an appellant’s notice has now expired and an application to extend time retrospectively may be made only to the Court of Appeal.