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Foenander v Bond Lewis & Co, Court of Appeal

29 May 2001
The issues

Practice – Extensions Of Time – Litigants In Person – Second Appeal

The facts

Claimant litigant in person sought leave to appeal against a refusal by the Judge to appeal out of time. He had issued proceedings of professional negligence against the Defendant. The action had been struck out. Under the former regime he had the right to appeal to a Judge within 5 days but he delayed for 2 weeks. This led to his application for an extension of time for appeal being refused. He then had the right to seek permission to appeal against the Judge’s order but he did not exercise that right.

In May 2000 the new appeals regime was introduced. There is now no longer appeal as of right against an order of the Master. The Claimant brought a series of attempts to appeal or apply for extensions of time to appeal, all of which were dismissed. However, the Civil Appeal Office accepted the Notice of Appeal against the order made by the Judge for leave to appeal against the refusal to appeal out of time.

The decision

If a lower Court and an Appeal Court at a lower level decided that a proposed appeal had no real prospects of success and there was no other reason why the appeal should be heard then there was no further appeal. This was the principal set down in Section 54 of the Access to Justice Act 1999. However, that principal did not apply to this case. This was not a second appeal because the matter decided by the Judge was the extension of time for appeal against the striking out order which was a different matter from that which the Master decided. This order had been made by the Judge exercising his discretion and nobody else had the power to consider this exercise of discretion. In these circumstances provided that permission to appeal was granted, the Judge’s order was appealable to the Court of Appeal.

In these circumstances provided that permission to appeal was granted, the Judge’s order was appealable to the Court of Appeal.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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