Neil David Martin Jarvis & Anor v Sibner Capital Limited

MR JUSTICE RAJAH:

1. This is an application for relief against sanctions. On 10 June 2025, I struck out this appeal. This is because, as I recited in the order, the appeal bundles that had been due to be filed by 20 May 2025 to include a transcript of the judgment of the lower court had not been filed nor any application for an extension of time made. There had been an earlier application for a stay of execution which I refused on 16 April and then a number of applications requesting an extension of time to apply to vary that earlier order which I had made but those applications were not progressed.

2. Accordingly, on 10 June, I refused any application for an extension of time to apply or vary the earlier order on 16 April by me refusing a stay of execution and I struck out the appeal. I pointed out in the reasons which I gave for striking out the appeal that the court’s issue letter dated 15 April 2025 set out clearly the requirement that the appellants file an appeal bundle containing the transcript or note of the judgment or written judgment of the lower court together with the skeleton argument and the documents relevant to the appeal as specified in CPR 52B Paragraph 654 by 20 May 2025. The letter explained that the consequences of not doing so and not applying for an extension of time was that the appeal would be liable to be struck out.

3. On 17 June 2025, this application was made for relief against sanction or to set aside the strikeout or for a retrospective extension of time. The application is opposed.

4. Between 17-20 June, an appeal bundle was filed although, as has become clear, while it includes a transcript of the judgment which was handed down by Monty HHJ on 15 January 2025, which is relevant to some of the appeal, a transcript of the hearing of 6 February 2025, which is critical to the determination of Ground 1 of the grounds of appeal, is not in that bundle.

5. So far as the Denton criteria are concerned, the first question I have to consider is the seriousness of the breach. The important principle that is engaged is the need for finality in litigation. Deadlines and procedural rules are there to be complied with because there needs to be finality in relation to the dispute between the parties. Litigation cannot continue indefinitely.

6. That is a principle which has particular relevance to an appeal. One party has obtained a judgment and an order but so long as there is an appeal outstanding, there is a question mark as to whether or not that judgment will stand and a question mark as to whether any steps which are taken by way of enforcement will be set aside or have to be undone at a later stage. A point which Mr Peplow makes is that for so long as an appeal is outstanding, other courts which are asked to consider questions such as enforcement may be willing to stay their hand to see what the outcome is of that appeal.

7. So even if there is no stay of execution, and I have refused one in relation to this case, there is no finality in the litigation unless and until this appeal is brought to an end. The corollary of that is that an appellant must conduct the appeal expeditiously. That is the expectation which the court has. What has happened here is anything but an expeditious conduct of this appeal.

8. Nothing really happened between the issue of this appeal on 14 April and the date on which I struck it out on 10 June 2025. If I were now to allow relief against sanctions there would be a considerable delay in resolving this appeal. This appeal would effectively have to start again. So the consequences of this breach are, in my judgment, very serious.

9. The reason for the breach is very unsatisfactory. The appellants were sent an issue letter which is very clear as to what is required of the appellant. It informs the appellants that the appeal has been allocated a reference number and it requires a reference number to be used in all further correspondence and then it goes on to explain that: “The appellant must now obtain a written record of the judgment of the lower court and explains how that may be done and then explains that an appeal bundle containing the transcript or note of the judgment or written judgment of the lower court or decision letter in an intellectual property office pensions ombudsman’s appeal. A skeleton argument and the documents relevant to the appeal must be filed 35 days from the date when your appeal was filed. That is to say 20 May 2025. By that date, you should file your complete appeal bundle which should be paginated and indexed as specified in CPR PD 53B Para 613.”

10. The next paragraph explains that if the appellant is unable to lodge that appeal bundle by that date, the appellant must make an application to extend time and explains how that should be done. It also explains that if the appeal bundle is not lodged and an application for extension of time is not made by that date, then the appeal is liable to be struck out and dismissed.

11. The appellants rely on an exchange which they had with Luis Onegi from chancery listings the next day. He sent an email saying that he was concerned that there was no evidence in support of the Appellants’ application for a stay of execution. In fact, by this stage the case had been put before me and I had already refused the stay of execution. The appellants pointed this out to Mr Onegi and Mr Onegi responded saying: “Dear Neil, I am deeply sorry I believe to have mistaken you appeal for a new case but it appears this has already been processed. No further action from my request is required.”

12. That was quite clearly referring to his earlier email requesting evidence in relation to the stay but the appellants say that they, as litigants in person, understood this to be a reference to all requests, including the formal issue letter of 15 April 2025. They have extrapolated from that that there was nothing for them to do in relation to this appeal unless they heard further from the court and consequently they did nothing.

13. I will observe at this stage two things. One is that the background here is litigation going back to 2020 for much of which the appellants have been acting in person. They are currently acting in person although from time to time they have the assistance of Direct Access counsel. They are represented today by Mr Decker who is acting pro bono and they are represented by pro bono solicitors for the purposes of this hearing.

14. But these are not inexperienced litigants in person. In relation to an earlier and important order made by Recorder Eaton-Turner on 14 December 2023, they issued the appeal and conducted the appeal, as I understand it, entirely as litigants in person, including attending on an oral hearing for renewal of application for permission to appeal when it was refused. They are not, therefore, either inexperienced litigants or inexperienced in relation to appeals and they do have access to expert advice in the form of Direct Access counsel which they choose to avail themselves of whenever they wish it.

15. In these circumstances, I am being invited to infer from the fact that nothing has happened in progressing this appeal that this is deliberate prevarication. If that were correct there would be no question of there being any relief from sanctions for failing to file these bundles on time.

16. Mr Peplow points to the history of this litigation and in particular he pointed to the very unsatisfactory procedural run of events in relation to a counterclaim which had been struck out by Recorder Eaton-Turner. The Recorder gave permission to apply for the counterclaim to be reinstated, which was ignored. Instead, an application was made to appeal which was eventually unsuccessful. There was then a late application to reinstate the counterclaim which was outside the window permitted by the Recorder. Further drafts of the counterclaim were then produced. The application was due to be heard at trial but in closing submissions these applications were withdrawn. There is therefore some history of inappropriate use of the court’s procedure in relation to this litigation.

17. I am told by Mr Decker, and there is some evidence, that at this time at least one of the appellants was suffering from depression, anxiety and stress but the evidence on this is very thin. It is one paragraph of the appellant’s witness statement exhibiting a letter which refers to conclusions drawn from an oral conversation with the appellant. During this period, nothing seems to have stopped the appellants from giving instructions to Direct Access counsel to launch a rival set of proceedings in the shape of a Part 7 claim form which was issued on 4 April 2025. It does not seem to me that the depression, anxiety and stress was so debilitating that it was not possible to progress with this appeal.

18. I am satisfied that there is no good reason for the failure to comply with the rules and on balance I am satisfied, just, that this appears to be deliberate prevarication. Although it is a high thing to lose the right to appeal for a procedural failing, it is a serious failing. I am satisfied that the sanction is appropriate. Even now, the appellant has not rectified its failings. It has not filed a compliant appeal bundle. The bundle which has been filed still does not have a copy of the transcript of the 6 February 2025 hearing.

19. I found that Mr Decker’s attempts to explain why none of these steps had been taken before, or correctly, unpersuasive. Some of these points might have had more impact if they were coming from a litigant in person who was involved in litigation for the first time and had no previous experience of litigation. That is not these appellants.

20. In those circumstances, I am satisfied that no relief from sanction should be granted and this appeal remains struck out. --------------- This transcript has been approved by the Judge