Party walls; appeals; time limits; procedure for filing appeals

Summary: An appeal lodged with the court two minutes after close of business on the last day for issuing the appeal, and without enclosing a means of paying the issue fee, was struck out as being out of time under section 10(17) of the 1996 Act.

Facts: The Basus sought to issue an appeal under section 10(17) of the Party Wall etc. Act 1996 (“the 1996 Act”), by sending an Appellant’s notice to the Court by email at 16:02 on 31 December 2018, that being the last day for them to issue their appeal given the 14-day time limit imposed by section 10(17) of the 1996 Act. The email did not provide a credit or debit card number which would have enabled the court to take payment of the issue fee, but did say “Please contact me on [mobile number] for me to arrange payment of the associated fee”. The court subsequently issued the appeal but the Barons applied to strike out the appeal as being out of time.

Decision: First, and relying on the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2 the judge held that although the court office closed at 16:00, the time period provided for in section 10(17) means that a party issuing an appeal has until 23:59 on the last day of the appeal period to file the same at the court, whether by physically delivering the same through a letterbox, or by sending it by email or fax.

Secondly, the judge determined, applying Pomiechowski v District Court of Legunica Poland [2012] UKSC 20 and Nursing and Midwifery Council v Daniels [2015] EWCA Civ 225, that it was possible to extend the time limit in party wall cases in exceptional circumstances, although no such circumstances applied in this case. It was the Appellants’ responsibility to inform themselves about the rules as to providing a debit or credit card number, and authorisation to take payment, and the fact that the HMCTS guidance note on the subject was not particularly clear did not give rise to exceptional circumstances, nor did the fact that the appeal was filed “only” 3 minutes late.

Comment: Although this might seem a rather harsh decision from the Appellants’ perspective, there can be no doubt that the judge’s conclusion was correct. Further, it is worth noting that there has not been a single case since the Act came into force, in 1996, where an extension of time to issue the appeal has been granted by the Court. Exceptional circumstances really does mean exceptional circumstances.

The full judgment can be found here

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