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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ewing, R (on the application of) v Secretary of State for Justice [2008] EWHC 3416 (Admin) (19 December 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/3416.html Cite as: [2008] EWHC 3416 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		19 December 2008

1. MR JUSTICE BEATSON: The claimants, Mr Terence Ewing and Mr Peter Prankerd, are both subject to civil proceedings orders made under Section 42 of the Supreme Court Act 1981. The court has found that they have habitually and persistently, without any reasonable grounds, instituted vexatious civil proceedings. The order against Mr Ewing was made on 12 February 1990. The order against Mr Prankerd was made on 18 November 2003.
2. At the hearing before me, Mr Ewing made submissions on behalf of himself and Mr Prankerd. During the hearing, I stated that I was not confident that I had a complete copy of the application bundle, and did not have a copy of Mr Ewing's skeleton argument. In a letter dated 16 December 2008, after the hearing, Mr Ewing sent me an up-to-date copy of the notice of application, and a copy of the speech of Lord Brown of Eaton-Under-Heywood in one of the cases which was not copied with the rest of the decision in the bundle of authorities. I am grateful for him doing so, although by the end of the hearing I in fact had a complete copy of everything.
3. In this application made on 22 April 2008, the claimants seek permission pursuant to Section 42(3) of the Supreme Court Act 1981 in respect of the order of Cranston J, dated 8 April 2008, refusing them permission to apply for judicial review to challenge the validity of certain provisions in the Civil Proceedings Fees (Amendment)(No 2) Order 2007, ("the 2007 Order"), in particular paragraphs 8(1) to 8(3), requiring vexatious litigants to pay a lodgement fee of £40 when making an application under Section 42 of the 1981 Act. The 2007 Order was made by the Lord Chancellor and Secretary~of State for Justice pursuant to his power, now contained in Section 92 of the Courts Act 2003, to prescribe fees. The claimants' submissions and Cranston J's reasons for rejecting the application are set out in his judgment at [2008] EWHC 1764 (Admin).
4. This application seeks leave either to set aside the order on the ground that Cranston J was automatically disqualified, or that there was a real danger of prejudice or bias in him hearing the application. It is also submitted that Cranston J took into account a letter from the Treasury Solicitors dated 7 April 2008 when there had been no prior direction for service by the applicants on the Treasury Solicitors under Part 3 CPR PD 7.6(4) and 7.7. Alternatively, the claimants seek leave to make an application to this court or to the Court of Appeal for permission to appeal against the order of Cranston J, and an application for permission to make an application for an extension of time under Part 54.4(2)(a) to apply for permission to appeal.
5. The reason the application is put in the alternative is because of one of the claimants' submissions is that Cranston J refused to grant permission without first having ruled on the application for permission under Section 42. It is said that the effect of this was to render his decision a nullity. The claimants submitted that the consequence is that this court can itself set aside the order in the exercise of its inherent jurisdiction. They rely on a number of authorities, notably the judgment of Lord Goddard CJ in R v Pugh ex parte Graham [1951] 2 KB 623, at 629, Isaacs v Robertson [1985] 1 AC 97 and Seal v Chief Constable of South Wales [2007] 1 WLR 1910, a decision of the House of Lords.

(1) The history of these proceedings.

6. Before turning to the claimants' submissions, I summarise the history of these proceedings. On 22 December 2007, the claimants applied for leave to seek a judicial review of the 2007 Order. The first claimant had previously been required to pay the fee specified in the 2007 Order in respect of an application for permission under Section 42(3) concerning proposed proceedings against the DPP. Although there is no record of a separate application for such permission in these proceedings, the applications were treated as such and came before Mr Michael Supperstone QC sitting as a Deputy High Court Judge on 22 February 2008. The Deputy Judge ordered the application for leave under Section 42(3) to be adjourned to an oral hearing and ordered that the Secretary of State file a skeleton argument. The claimants were, however, not directed to serve the application and supporting documents on the Secretary of State, nor was any arrangement put in place for the court to serve the application on the Secretary of State. In a letter dated 27 February 2008, the claimants drew the attention of the Administrative Court Office to this and asked that the matter be put before the Deputy Judge. They stated that they had no standing to serve the proposed defendant without a direction under Part 3 PD paragraph 7.7.
7. On 26 March 2008, the claimants informed the Secretary of State by email and letter of the application and that it was listed for hearing on 8 April 2008. They also stated that, in the absence of a direction under Part 3 PD 7.6(b) and 7.7, it was inappropriate for counsel to appear at the hearing on behalf of the Secretary of State. On 7 April 2008, the Treasury Solicitors wrote to the Administrative Court Office stating that because of the shortness of time the Secretary of State was unable to instruct counsel, but the letter contained a number of observations on the application. It states:

"Section 42(3) of the Supreme Court Act states that leave to institute civil proceedings shall not be given unless the High Court is satisfied that the proceedings are not an abuse of the process of the court in question and that there are reasonable grounds for the proceedings. The Secretary of State does not contend that the proposed judicial review would constitute an abuse of process. However, he would respectfully submit that the claimants' application does not reveal any ground of challenge that would enable the court to grant the relief claimed, and therefore the application for permission should be refused."

The letter then gave reasons for the submission that the application does not reveal any arguable grounds of challenge. The letter stated that it was setting aside the issue of whether the Secretary of State had been joined as a party to the application by Mr Supperstone's order.

8. At the hearing on 8 April 2008, Mr Ewing, on behalf of both claimants, argued that Cranston J should recuse himself from the application because he had previously held the post of Solicitor General and had been a colleague of Mr Straw, the Secretary of State and Lord Chancellor, and because Cranston J, when an MP, met Mr Ewing in his capacity as an MP. Cranston J did not recuse himself. In paragraph 2 of his judgment he states:

"The application was argued before me by Mr Ewing, who reminded me that he had come to see me on at least one occasion when I was a Member of Parliament and Solicitor General. Nothing turns on that."

9. Cranston J also referred to the fact that the claimants had not been directed to serve the application on the Secretary of State. He said:

"Mr Ewing also picked up an oversight. Mr Supperstone QC, sitting as a Deputy High Court Judge, had directed that the Secretary of State file a skeleton argument within two days before the hearing of this matter. Unfortunately there were no directions given for the claimants to serve the application notice, nor for the court to observe it and the supporting documents on the Secretary of State. The claimants, as I have indicated, recognised the oversight and kindly informed the Treasury Solicitor."

10. One of the issues is whether Cranston J had jurisdiction at the hearing in these circumstances to take into account the submissions contained in the letter from the Treasury Solicitors. On 8 April 2008 the hearing started in the morning. It is common ground that the issue of permission under Section 42(3) was specifically addressed and submissions were made as to that and the merits of the claimants' case. Although the transcript of Cranston J's judgment states on its cover sheet that the defendant did not appear and was not represented, Mr Coppel's skeleton argument on behalf of the Secretary of State states in paragraph 30 that:

"...when Mr Justice Cranston asked the Defendant if he opposed the grant of leave. After seeking instructions, he was informed that the Secretary of State opposed the grant of leave, as set forth in the letter of 7 April 2008."

No issue was raised about this by the claimants. The defendant thus opposed the grant of leave on the basis set out in the letter of 7 April 2008.

11. I have stated that the application now before me was made on 22 April 2008. On 14 May 2008, Forbes J ordered that the application for permission to commence proceedings for judicial review be adjourned to an oral hearing, that the application and the evidence be served on the Attorney General pursuant to CPR Part 3 PD, paragraphs 7.6 and 7.7, and that the defendant and the Attorney General be notified of the hearing and invited to attend and make representations.
12. On 7 August 2008 those representing the Secretary of State wrote to the court, submitting that the application to be listed must be the application under Section 42 for permission to set aside or appeal Cranston J's order. On 14 October 2008 Forbes J accepted this. He said:

"In view of the somewhat unusual circumstances, I have directed an oral hearing of the application [...] Given the (effectively) inter-parties nature of the application, it should be served on the Secretary of State and my order of 14 May clearly contemplated that this should be done. I did not consider that it was necessary to give an express direction to that effect. However, for the avoidance of doubt, I direct that the application and supporting documentation is to be served on the Defendant within 14 days."

(2) Leave to apply to apply to set aside Cranston J's order.

13. Mr Ewing submits that Cranston J's order is unlawful or a nullity for two reasons. These are: apparent bias, and because he did not rule on the Section 42 question before considering whether to give permission to apply for judicial review. Mr~Ewing argued that it is necessary first to consider Section 42 and, if leave is not given under that, all that follows is a nullity.
14. Mr Ewing relied on the statement of Carnwath LJ in the Court of Appeal in the case of R (Ewing) v Office of the Deputy Prime Minister [2006] 1 WLR 1260, paragraphs 11, 20 and 35. In that case Carnwath LJ stated that the decision of Lord Donaldson in Ex Parte Ewing [1991] 1 WLR 388 at 393G, that the proper way to deal with an application for judicial review by somebody to whom Section 42 applies was to consider both the Section 42 application and leave to apply for judicial review together, needed reconsideration. Reconsideration was needed in the light of the provisions in CPR Part 54 for a defendant to be served with the application and to have an opportunity to file an acknowledgement of service before the court considers leave to apply for judicial review. At paragraph 35, Carnwath LJ stated that the simple approach advocated by Lord Donaldson may be right in some circumstances, but in others a staged procedure may be necessary. Carnwath LJ recommended that there be a clear distinction at the application stage between the application under Section 42 and the application under CPR Part 54 to ensure that a defendant was not unnecessarily asked to serve an acknowledgement of service where this was not necessary for consideration of the Section 42 issue.
15. Mr Ewing also relied on the decision of the House of Lords in Seal v Chief Constable of South Wales Police [2007] 1 WLR 1910. That was a case in which a person who was arrested and then detained under the Mental Health Act 1983, instituted proceedings for damages for misuse of the power to detain under Section 136 of the 1983 Act. By Section 136(2), no civil proceedings shall be brought in respect of any act done in pursuance of the 1983 Act and regulations made under it without leave of the High Court. In that case, the claimant did not apply for leave, but argued that the requirement was directory and could be cured by a subsequent grant of leave. A majority of the House of Lords rejected this argument. It was held that the long-held consensus was that proceedings issued without leave were a nullity, and the 1983 Act was passed on that basis. While an inflexible rule might be hard, Parliament had considered it a price worth paying for the protection it gave to those dealing with the mentally ill. Lord Brown of Eaton-Under-Heywood at paragraph 72 of his speech drew on the position of vexatious litigants. He considered that the position under the Mental Health Act was analogous to that of vexatious litigants.
16. It was submitted on behalf of the claimants that one cannot imply from Cranston J's judgment that he granted leave under Section 42. There are two limbs to the test under section 42(2); whether the proceedings are an abuse of process, and whether there are reasonable grounds for the proceedings or the application. It was submitted that there was a contradiction between Cranston J's ruling that there was no arguable ground for seeking judicial review, and any implication that the second limb of the Section 42(2) test had been satisfied.
17. This is not a case like Seal's case. In that case the claimant (a) did not apply for leave pursuant to the statutory requirement, and (b) argued that proceedings instituted without leave could nevertheless continue. In the present case, the claimants made an application for leave under Section 42. It was that application that was listed for hearing on 8 April 2008. It is common ground that there were submissions at the hearing about Section 42. It appears that the defendant's position as to the grant of leave under Section 42 on the basis set out in the letter of 7 April 2008 was before the court. So, having made an application for leave under Section 42 which came before the court and was the subject of submissions, the claimants now argue that because the judge did not state his conclusion on Section 42 expressly, the proceedings are a nullity.
18. The argument that Cranston J was required first to make an express decision under Section 42 and only then to consider leave to move for judicial review is inconsistent with Lord Donaldson's approach in Ex Parte Ewing. In R (Ewing) v Office of Deputy Prime Minister, Carnwath LJ does not say that Lord Donaldson's approach is never appropriate. He states that a tailored approach is necessary. The procedure must be tailored to the requirements of the particular case (see paragraph 34). Carnwath LJ was concerned about the need to protect the prospective defendant and thus considered that the use of the single approach might mean the prospective defendant is inappropriately asked to serve an acknowledgement of service before the Section 42 application has been dealt with. Here, the Deputy Judge considered that the prospective defendant should be involved and so ordered, although by an oversight did not make an order under the Part 3 Practice Direction. After the decision of the Deputy Judge, there was no need for the staged approach contemplated by Carnwath LJ.
19. The claimants' submissions rely on regarding the proceedings as a nullity because of the failure expressly to state the decision on Section 42. However, the language of nullity is inappropriate in considering the position of an order of a superior court. A number of the cases relied on by the claimants, for example Ex Parte Pugh, DPP v Head [1959] AC 83 and Ex Parte Peachey Property [1966] 1 QB 380 relate to inferior courts. Lord Diplock in Isaacs v Robertson stated that the language of nullity was inappropriate for a superior court. He described the orders of superior courts as either regular or irregular. In those terms, an order of a court on an application by a vexatious litigant who has not applied for leave under Section 42 would be irregular.
20. That, however, is not this case. The claimants did apply for leave. There is clearly an overlap between the second limb of the requirement under Section 42(3) and the requirement for leave to move for judicial review. Mr Coppel submitted that there is no necessary inconsistency in concluding that there are reasonable grounds for the proceedings within Section 42(3), but that leave for judicial review should not be given. Although this may be so, Mr Coppel gave no concrete example of a situation in which this would be a realistic possibility. His scenario either presupposes that the hurdle of reasonable grounds under Section 42 is lower than the arguability test for judicial review, or that the reason for not granting leave to move for judicial review concerns, for example, delay rather than the grounds for the proceedings. It is, however, likely only to be in an unusual case that the section 42 hurdle is overcome but the CPR 54 requirement of leave is not. The argument that the hurdle in the second limb of Section 42(3) may be satisfied where leave to move for judicial review should not be given does not, moreover, sit comfortably with the words of Lord Donaldson in Ex Parte Ewing, that if the judge, faced with an application under the Section 42 order and an application for leave under Order 53, or now CPR 54:

"...decides that there is no case for giving leave under Order 53 [or CPR 54] he equally will have no difficulty in refusing leave under the Section 42 order."

21. It is not clear whether Cranston J followed the procedure identified by Lord Donaldson in Ex Parte Ewing; that is, considering both applications together. This is because, as Lord Donaldson stated in the passage from which I have just quoted, if the judge decides there is no case for giving leave for judicial review, he equally will have no difficulty in refusing under Section 42, and Cranston J did not do that expressly. It would have been more satisfactory for Cranston J expressly to state his conclusions on Section 42. However, here, that section was squarely before the court which heard submissions on the point. Cranston J must have allowed the Section 42 application. Any oversight by Cranston J was to the prejudice of the defendant and the benefit of the claimants. This is because there is in principle an appeal from a refusal to give leave to move for judicial review, but, pursuant to Section 42(4), there is no appeal from a decision refusing leave under Section 42.
22. In the present case, Cranston J's order was, on its face, an order refusing leave to move for judicial review. In view of the nature of the application before him and the submissions he had heard in the morning, he must have allowed the Section 42 application. Accordingly, the claimants, having been refused permission for judicial review following a hearing, must (see R (Opoku) v Principal of Southwark College [2002] EWHC 2092 (Admin)) apply to the Court of Appeal for permission to appeal. The application that Cranston J's order be put aside is misconceived.

(3) Leave under Section 42 to apply for permission to apply to the Court of Appeal to get permission to apply for judicial review.

23. The claimants submit that leave should be granted because Cranston J was disqualified from hearing the application because of his former position as Solicitor General and a colleague in Government of Mr Jack Straw MP, at that time Home Secretary or Foreign Secretary, but now Secretary of State for Justice and Lord Chancellor, and the minister responsible for laying the regulations at issue in the claimants' substantive judicial review case. They submit that in the language of the well-known test of bias, a fair-minded and informed observer would conclude that there was a real possibility or a real danger of bias in Cranston J dealing with this application.
24. The claimants also submit that Cranston J failed to deal with this in his ruling. He referred only to Mr Ewing's visit to his constituency surgery in 1998. Cranston J, then Mr Cranston, was then serving as the Labour MP for Dudley North. He did so from 1997 to 2005. He did not enter Government immediately after the election in 1997, but later that year became Solicitor General, a post he held until 2001. At the hearing before me Mr Ewing did not pursue the suggestion, in paragraphs 9 and 10 of his skeleton argument, that Cranston J was disqualified from hearing the application because Mr Ewing and one of Mr Cranston's constituents had attended Mr Cranston's constituency surgery in 1998 to discuss Section 42. .
25. There is no suggestion that Mr Straw and Cranston J are or were close friends or long-standing family acquaintances, as was the case of the judge involved in AWG Group v Morrison [2006] 1 WLR 688. It was also not submitted on behalf of the claimants that the mere fact that Cranston J had once been an MP disqualified him from sitting on an application concerned with a statutory instrument.
26. What is relied on is his membership of the same government as Mr Straw and their acquaintance with each other, although reference is also made to the fact that they both contributed to a book called "Law Reform For All" published before the 1997 election. Reliance was also placed on them both attending meetings. An article in Law Brief about a report in the Independent on 9 January 2001 refers to a meeting attended by them both on fast-track procedures for persistent offenders. Reliance is also placed on a visit by Mr Straw to Mr Cranston's constituency at his invitation in 2001 to see CCTV cameras funded by Government, the local council and local traders.
27. Although reference was also made to advice given by Mr Cranston as Solicitor General concerning the extradition of Senor Pinochet, Mr Ewing, on behalf of the claimants, accepted that it was not clear from the media reports whether advice was given to the Home Secretary or to the Crown Prosecution Service. An article from the Independent on 18 March 2000, concerning the consideration that had been given to prosecuting the newspaper for contempt as a result of the release of a confidential medical report about Senor Pinochet's fitness to stand trial and the decision not to proceed, was before the court. The Attorney General had recused himself from handling this case and it was handled by the Solicitor General. It was submitted that Mr Straw must have asked the Solicitor General to drop the case, but there is no indication in the material before the court that Mr Straw was involved in the matter.
28. The claimants cited many authorities, from Frome Breweries v Bath JJ [1926] AC 586, to AWG Group v Morrison [2006] 1 WLR 688. Particular reliance was placed on R v Bow Street Stipendiary Magistrates ex parte Pinochet Ugarte (No 2) [2001] AC 119, Locobail v Bayfield Properties [2000] 1 QB 451, and Re Medicaments [2001] 1 WLR 700. Reliance was also placed on the decision of the European Court of Human Rights in Piersack v Belgium [1983] 5 EHRR 169.
29. There is no dispute as between the parties as to the test to be applied. There are many statements of this test. In Davidson v Scottish Ministers [2004] SLT 895 at paragraph 7, Lord Bingham reiterated the formulation of Lord Hope in Porter v Magill [2002] 2 AC 357 at paragraph 103. His Lordship stated:

"The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

In Re Medicaments (No 2), at paragraph 85, Lord Phillips MR, giving the judgment of the Court of Appeal, said the court must ask whether the circumstances which have a bearing on the suggestion that the judge was biased:

"...would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased."

30. It is clear, for example from the decisions given in Ex Parte Pinochet Ugarte and Locobail v Bayfield, that a disqualifying appearance of bias may arise from identification with a cause or a body. It is, however, also clear from the decision in Davidson v Scottish Ministers that the fact that a judge has been a member of a government is not enough to disqualify that judge in respect of decisions made by that government.
31. In Davidson's case, it was not the fact that Lord Hardie had been Lord Advocate which led the House to rule that there was a real possibility of bias in his hearing that case. It was the fact that, while Lord Advocate, he made statements about the effect of Section 21 of the Crown Proceedings Act 1947 on the remedies that might be available to the courts after devolution. That was the very issue before the court. He made those statements as part of his promotion of the bill that became the Scotland Act 1998. It was that promotion which led the court to conclude that he was subject to a disqualifying appearance of bias.
32. The decision in Davidson's case shows that there must be a nexus between the issue before the court and the role of the judge while he was a minister. So does the decision of the European Court of Human Rights in Piersack v Belgium. In that case, the judge had formerly been a public prosecutor. The court stated that the mere fact that he had previously been a public prosecutor was not a reason for fearing that he lacked impartiality. The problem arose because his particular post in the prosecutor's office may have led him to deal with a case now before him as a judge, in the course of those duties as a prosecutor. It was that which meant he was a judge whose impartiality is capable of appearing open to doubt. Again, this case shows there must be a demonstrated nexus between the issue before the court and the role of the judge while he was a minister or prosecutor.
33. Although Mr Ewing submitted on behalf of the claimants that Cranston J's position was unique, it is not. There are several examples of Scottish law officers becoming members of the Court of Session. Apart from Lord Hardie, there is Lord Rodger, who now sits in the House of Lords. In England Lord Simon was a government minister and Solicitor General before his appointment as President of the Probate, Divorce and Admiralty Division. There are other examples. For example, Slesser and Ungoed-Thomas JJ served as Solicitors-General, and Lord Hanworth MR and Somerville LJ had been Attorneys General. The examples were more common before the Second World War, but the cases of Lord Simon and Ungoed-Thomas J show that they were not confined to that period.
34. The claimants have not identified anything said or any statement by Cranston J while a minister, or indeed while an MP, indicating the promotion of the imposition of court fees on vexatious litigants, or indeed on any other category of litigant. That Cranston J is alive to the need to recuse himself where his promotion of a cause in the past gives rise to an appearance of bias is seen from his decision given in a case after his judgment in this case to recuse himself from an application by hunt supporters for an injunction against hunt monitors. The claimants do not suggest that Cranston J is either a close friend or long-standing family acquaintance of Mr Straw as the judge was in AWG v Morrison. In these circumstances it is not arguable that Cranston J was disqualified from considering the challenge to the 2007 regulations.

(4) The standing of the defendant.

35. The claimants also argue that, because Mr Supperstone QC did not make an order requiring service on the defendant, the defendant had no standing to make representations either in the letter of 7 April 2008 or at the hearing, and that therefore Cranston J improperly took account of the representations when the Secretary of State was not properly joined as a party. Mr Ewing relied on the decision in Jones v Van Colina [1996] 1 WLR 1580. That reliance is misconceived. First, Jones v Van Colina was a case in which a party was seeking to set aside permission made under Section 42, not, as here, simply seeking to be heard. Secondly, the position as it was in that case has since been reversed: see the summary in the judgment of Davis J in Re Ewing [2002] EWHC 3169 QB Thirdly, in Re Ewing it was held that Mr Ewing's argument that the Secretary of State had no standing to appear in applications for leave under Section 42(3) was rejected. So the Secretary of State, as the prospective party to a judicial review claim for which permission under Section 42 is sought, has standing. Fourthly, this is consistent with the position in judicial review where the court has power under CPR 54.9 to allow a party who has not filed an acknowledgement of service to take part in the hearing.
36. Finally, the claimants' reliance on Part 3 PD, paragraphs 7.6 and 7.7 is misconceived. These provisions provide no support whatsoever for the proposition that, absent a direction to serve a proposed defendant in judicial review proceedings, that defendant has no jurisdiction to be heard on a judicial review application.
37. Paragraph 7.7 states that directions given under paragraph 7.6.4 for the hearing of the application:

"May include an order that the application notice be served on the Attorney General and on any person against whom the litigant desires to bring the proceedings."

It does not state what direction must be given, and neither paragraph 7.6 and 7.7 deal with the issue of who may attend the hearing. The Deputy Judge clearly envisaged the involvement of the defendant at the hearing. Why else did his order request him to submit a skeleton argument? The claimants' notification of the position to the Treasury Solicitor was described by Cranston J as "kind", but when coupled with their stance that the person who the Deputy Judge clearly wanted to attend could not do so, may be seen in a different and less favourable light.

38. I have considered the substantial grounds and have concluded that there is no arguable basis for appealing Cranston J's decision, either on the apparent bias ground, or because the defendant's representations were considered by him. The application does not give any grounds going to the substantial reasons concerning the 2007 regulations given by Cranston J in support of the application for leave to apply for permission to appeal.

Delay

39. I accept the defendant's submission that the claimants are out of time. The order was made on 8 April 2008. The renewal application thus had to be made by 15 April 2008. The application requesting leave under Section 42 was issued on 22 April 2008, seven days out of time. No grounds of appeal, either completed or in draft form, for the underlying application have been furnished.
40. As for the application to vary the time limit, such an application is governed by CPR Rule 52.6. The court is required to consider all the circumstances of the case, and in particular the interests of the administration of justice, promptness, whether there is a good explanation for any failure to be prompt, and the effect which granting the relief would have on each party. While the requirement to obtain leave of the court under Section 42(3) provides some explanation for the delay, the claimants did not make this application for leave under Section 42 within the seven-day requirement in CPR 52.15.
41. I would not have refused permission solely on the grounds of delay. But, for the reasons I have given, I have concluded that the claimants have failed to disclose an arguable case for appealing against Cranston J's decision on either the bias ground or because he took into account the defendant's representations. Accordingly, the application is refused.