Keen Phillips (A Firm) v Field

Factual and Procedural Background

This appeal concerns an order made by a circuit judge in the Guildford County Court on 14 February 2006. The appellant, the defendant in the original action, appealed against the order granting the claimant, an accountancy firm, permission to appeal against the refusal of a district judge to grant summary judgment and allowing that appeal. The original claim, commenced on 18 February 2005, sought payment for accountancy services allegedly provided by the claimant to the appellant.

The claimant's application for summary judgment was dismissed by the district judge on 12 December 2005. The claimant then appealed, seeking permission to appeal and to have the appeal allowed. The circuit judge ordered the claimant to lodge an approved transcript of the district judge's judgment by 31 January 2006, later extended to 7 February 2006. The transcript was lodged one day late, on 8 February 2006, due to delays beyond the claimant's control.

At the hearing before the circuit judge, counsel for both parties appeared. The judge decided to hear substantive grounds of appeal together with the application for permission. After submissions, the judge extended the time for lodging the transcript despite the delay, granted permission to appeal, allowed the appeal, and entered summary judgment for the claimant in the sum claimed plus interest.

The appellant now appeals to this court solely on the issue of whether the circuit judge had jurisdiction to grant permission to appeal, hear the appeal, and allow it.

Legal Issues Presented

1. Whether the circuit judge had jurisdiction to grant permission to appeal, hear the appeal, and allow the appeal after the claimant failed to comply with a court order to lodge a transcript within the prescribed time.
2. Whether the court's general case management powers under CPR Rule 3.1(2)(a) and Rule 3.3(1) are limited or cut down by the specific provisions relating to sanctions and relief from sanctions under CPR Rule 3.8 and Rule 3.9.
3. The proper interpretation and application of CPR Rules 3.1, 3.3, 3.8, and 3.9 concerning extensions of time and relief from sanctions.

Arguments of the Parties

Appellant's Arguments

• The circuit judge lacked jurisdiction to extend the time for filing the transcript because the claimant failed to comply with the order imposing a sanction of refusal of permission to appeal if the transcript was not lodged on time.
• The court's general case management power to extend time under CPR Rule 3.1(2)(a) is subject to exceptions, including CPR Rule 3.8, which provides that sanctions imposed for failure to comply with court orders have effect unless relief from the sanction is applied for and granted.
• No formal application for relief from sanctions was made by the claimant, so the sanction of refusal of permission to appeal remained effective, and the judge had no power to extend time or grant permission.
• The appellant relied on the Court of Appeal decision in Sayers v Clarke Walker [2002] EWCA Civ 645, emphasizing the need to follow the checklist in CPR Rule 3.9 when considering relief from sanctions.
• By analogy with Rule 7.6 (extension of time for serving a claim form), the appellant argued that Rule 3.8 restricts the court’s general power to extend time, citing Vinos v Marks & Spencer plc [2001] 3 All ER 784.
• The overriding objective of the CPR does not override specific provisions that limit the court’s powers; thus, the judge should have required a formal application for relief from sanctions before extending time.
• The claimant’s counsel should have been asked to make a formal application for extension of time, which did not occur.

Respondent's Arguments

The opinion does not contain a detailed account of the claimant’s legal arguments beyond the submissions made in the lower court and the judge’s findings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court focused on the jurisdictional issue regarding the circuit judge’s power to extend time and grant permission to appeal after the claimant failed to comply with the order to lodge the transcript on time. The appellant argued that the sanction imposed by the order (refusal of permission) remained effective absent a formal application for relief from sanctions under CPR Rule 3.8 and 3.9.

The court assumed, for the sake of argument, that the extension of time constituted relief from sanction under Rule 3.8. However, it rejected the appellant’s submission that the court’s general case management powers under Rules 3.1(2)(a) and 3.3(1) are curtailed by Rule 3.8 such that the court lacks jurisdiction to extend time or grant relief unless an application is made by the party in default.

The court held that it would be perverse to interpret the CPR as depriving the court of jurisdiction to exercise its case management powers in such circumstances. Rather, Rule 3.8 means that absent the court exercising its powers, the sanction remains in effect until relief is granted on application. The court distinguished the appellant’s reliance on Vinos, noting the different wording of the relevant CPR provisions.

Moreover, the court found that an application for extension of time was effectively before the circuit judge, as indicated by the transcript. The judge heard submissions from counsel opposing the extension and considered them before granting relief. The court further noted that the Practice Direction allows the court to dispense with formal application notices, making it artificial to hold there was no application.

Accordingly, the court concluded that the circuit judge had jurisdiction to grant the extension and permission to appeal, and the appeal against that decision must be dismissed.

Holding and Implications

The court DISMISSED THE APPEAL.

The direct effect is that the order of the circuit judge granting permission to appeal, allowing the appeal, and entering summary judgment for the claimant stands. No new precedent was established beyond the court’s clarification that the court’s general case management powers to extend time and grant relief from sanctions are not ousted by Rule 3.8 absent specific circumstances, and that an application for relief may be implied from the circumstances and submissions before the court.