Appeal notices and the electronic working pilot

The important procedural question raised in Microsoft Ireland Operations Limited v JJH Enterprises Limited [2022] EWCA Civ 1509 was this: where an appellant’s notice (AN) is filed with the Court of Appeal electronically in accordance with the Electronic Working Pilot Scheme (introduced by PD51O), should the AN be filed by 4.30pm on the last day of the permitted period, or could it be filed at any time up to midnight on that day?

The rules, practice directions and pilot

Part II of PD52C para. 3(2) provides that an AN must be filed in the Civil Appeals Office Registry, and para. 2.1 (a) of PD2A provides that court offices for the senior courts (which includes the Civil Appeals Office Registry) shall be open on weekdays between 10am and 4.30pm (office hours). ‘Filing’ is defined in rule 2.3 (1) as ‘delivering a document or information, by post or otherwise, to the court office’. The Court of Appeal in Van Aken v Camden London Borough Council [2002] EWCA 1724 held that a document could be filed in a court office, within the meaning of rule 2.3 (1) by physical delivery at the office, and did not require any steps to be taken by office staff, with the result that filing could take place outside office hours.

CPR 52.12 (2) sets out the time within which an AN must be filed. The default period in sub-para. (2) (b) is ‘21 days after the decision of the lower court’. The default period is defined in terms of days and says nothing about any time of day before which filing must occur, though it would be open to the lower court to do so when exercising its power under sub-paragraph (2) (a).

The Pilot Scheme introduced by PD51O operates from 16 November 2015 to 6 April 2023, and became mandatory (for represented parties) in the Civil Division of the Court of Appeal from 14 February 2022. Section 2 of PD51O is headed ‘Usage and Operation of Electronic Working’ and para. 2.1 states: ‘Electronic working enables parties to issue proceedings and file documents online 24 hours a day every day all year round, including during out of normal court office opening hours and on weekends and bank holidays…’

Microsoft Ireland Operations Limited

The claimant, JJH Enterprises Ltd, trading as ValueLicensing (VL) brought proceedings against three defendants (Microsoft). On 14 April 2022, Picken J dismissed Microsoft’s applications to strike out VL’s claim against one of the defendants, or grant summary judgment and to stay its claim against the others on grounds of forum non conveniens. Picken J extended time for filing an AN but did not specify a time on the final day by which it should be filed. Microsoft’s time for filing an AN expired on 6 June 2022. At 4.52pm on 6 June 2022 Microsoft filed an AN electronically in accordance with PD 51O. On 9 June 2022, Microsoft made an application seeking a declaration that the AN had been filed in time but asking for an extension of time if that was wrong. The master held that the effect of para. 2.1 of PD 51O was that documents could be filed at any time up to midnight and therefore the AN had been filed in time.

Judgment and judicial guidance

The Court of Appeal began with the rules and practice directions as they stood before the introduction of PD51O and noted that, as Van Aken confirmed, the provisions governing the traditional methods of filing contained no requirement for filing in office hours: the only limitation was the practical one of effecting delivery. When it was thought desirable that there should be such a limitation in the case of filing by fax and e-mail, which were not subject to the same practical limitation, an explicit requirement had to be introduced. The court explained that, against that background, when PD 51O introduced electronic filing, there were no limitations on the permissible times of filing and therefore there was no requirement of filing in office hours in the case of electronic filing ‘in the absence of any provision to the contrary and subject to any different order in the particular case that would reasonably be understood by litigants as a statement that such filing would be effective for all purposes, including where time expired on the day in question’. That conclusion meant that the makers of PD51O adopted a different approach from the makers of PD5A and 5B but that was not particularly surprising because there was no reason why electronic filing should be treated in the same way as filing by e-mail or fax.

The court also rejected VL’s following arguments:

• CPR 2.9 (1), which requires that, where a court imposes a time limit for doing any act, the last date for compliance should include the time of day by which the act must be done. The court held that the short answer was that, even if that rule applies to an extension such as was granted in this case, the judge’s order included no such time.
• Reference is made in the rules to the obligation imposed on the court office to record the date and time of filing. But, as was held in Van Aken, the existence of that obligation does not entail that documents must be filed within office hours, as long as there are means by which the date and time can be ascertained. That was plainly the case with electronic filing.
• Para. 1.2(1) of PD51O makes clear that ‘electronic working works within and is subject to all statutory provisions and rules together with all procedural rules and practice directions applicable to the proceedings concerned, subject to any exclusion or revision within this practice direction’. However, an entitlement to file outside office hours is not inconsistent with any rule or practice direction applying to the Civil Appeals Office.

The decision provides important judicial guidance to practitioners on the filing of AN using the pilot scheme. Unless the lower court has explicitly provided a deadline for the filing of an AN, there is nothing to prevent a party from filing an AN by midnight on the last day of the permitted period. The decision is consistent with the policy rationale that underpins the scheme which is to use technology to manage cases efficiently and expediently; thereby saving the parties time and money while allowing the courts to better manage their finite resources.

Masood Ahmed is an associate professor at the University of Leicester and research fellow on the Vici Affordable Access to Justice project, Erasmus University, Netherlands