Too late to appeal?


Posted by Stephanie Walls, 15th May 2019
A recent Court of Appeal decision on inheritance disputes gives useful guidance for parties wishing to appeal a decision of a lower court regarding probate.

The underlying dispute in McDonald v Rose [2019] centred on supposed assurances given to the claimant, Mr McDonald, by his parents in relation to the size and nature of his inheritance.

Mr McDonald had undertaken work for the family businesses and claimed that he had been assured that in exchange for the work carried out, he would receive the majority of the estate assets from his parents. Mr McDonald claimed that he had relied upon these assurances and that it would be unconscionable for his parents’ estate not to give effect to them.

However, in the first instance, the proprietary estoppel claim failed on the basis that all of the six McDonald children had, at some time or another, been told that they would receive a share of the estate. Further, the trial judge held that the share of the estate that the Mr McDonald was claiming entitlement to, was entirely disproportionate to the value of work that he had actually undertaken on behalf of the family business.

On 7 March 2018 a draft judgment was circulated, in advance of the formal hand-down on 9 March. In the interim, Mr McDonald’s solicitors wrote to the court stating their intention to appeal and asking the judge to adjourn the 9 March hearing. They did not, however, request an extension of time beyond the 21 day limit under CPR 52.12(2), for filing an appellant’s notice. An additional paragraph was inserted into the judgment of 9 March stating that parties could make written submissions “within 14 days of the handing down of this judgment [i.e. by 23 March]”.

The parties filed written submissions within the prescribed time frame, with the defendant expressly opposing the application for any extension of time for filing the appellant’s notice by 30 March (21 days from the 9 March judgment). Permission to appeal was refused on 18 April. Despite being clearly alerted to the deadline of 30 March, the applicant filed his notice on 9 May.

This would have been the deadline, had the 21 days commenced on 18 April when permission was refused. As no extension of time was sought, the only thing that was adjourned was the hearing and therefore the notice was out of time. The applicant subsequently sought a retrospective extension, which was treated as an application for relief from sanctions.

Applying the three stage test outlined in Denton, the application was refused on the basis the applicant’s ignorance of the rules did not provide an adequate reason for default. Further, it was held that the applicant would have no real prospect of success if permission to appeal was granted.

This case serves as a useful reminder that the time period for appealing normally runs from the date of the decision of the lower court, rather than the date the lower court refuses permission to appeal. If more time is required, an express extension of time to appeal should, if possible, be sought from the trial judge.