IN THE SUPREME COURT OF JUDICATURE	SLJ 1999/5419/3
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(His Honour Judge Rich QC)	Royal Courts of Justice
	Strand, London WC2

	Tuesday, 22nd June 1999

	B e f o r e :

	LORD JUSTICE NOURSE

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	THAMES WATER UTILITIES LIMITED	
	Plaintiff (Respondent)
	-v-

	(1)  OXFORD CITY COUNCIL	(Applicants)
	(2)  OXFORD UNITED FOOTBALL CLUB LIMITED	Defendants

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MR E H SCAMELL (instructed by the Head of Legal and Committee Services, Oxford City Council) appeared on behalf of the Applicant First Defendants.
The Respondent Plaintiff was not represented.
The Second Defendant was not represented.

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	J U D G M E N T
	(As Approved by the Court)

	Crown Copyright

	Tuesday, 22nd June 1999

LORD JUSTICE NOURSE:	 This is an application by the first defendants, Oxford City Council, for permission to appeal and an extension of time for appealing against an order of His Honour Judge Rich QC, sitting as a judge of the Chancery Division, made on 31st July 1998 but not entered until 2nd December 1998.  By that order the judge, on the trial of preliminary issues, made  declarations in favour of the plaintiff, Thames Water Utilities Limited, against which the first defendants, but not the second defendant, Oxford United Football Club Limited, wish to appeal.  

At the date on which the order was entered permission to appeal  against the judge's order was not required.  The time for appealing expired on 31st December 1998, by which time no appeal had been lodged.  Indeed it was not until 22nd February 1999, more than seven and a half weeks out of time, by which stage leave to appeal was required by the rules, that application was made to this court.   

The application first came before me upon consideration of the documents when, on 27th May last, I ordered that it be listed for an oral hearing of which the plaintiff was to be given notice, with liberty to attend.  I gave the following reasons:   
	"As to the four elements in the equation set out in the judgment of Lord Donaldson of Lymington MR in Norwich and Peterborough Building Society v Steed [1991] 1 WLR 449, 454, my provisional views are (1) that the length of the delay (nearly 12 weeks) is a serious matter;  (2) that the reasons given for the delay are unimpressive;  (3) that an appeal by the first defendant would have a reasonable prospect of success if an extension of time and permission to appeal were to be granted;  and (4)  that it cannot be assumed that there would be no prejudice to the plaintiff if an extension and permission were to be granted.  In the circumstances, particularly in the light of (4) above, the application can only be properly determined at an oral hearing at which the plaintiff is also represented, and the costs of which can be expected to be awarded to the plaintiff, whatever the outcome."   

I gave the plaintiff liberty to file evidence under (4) if advised.  I was incorrect in saying that the delay was nearly 12 weeks.  It was, as I have said, seven and a half weeks.   

On receiving a copy of my order with the reasons, the plaintiff's solicitors have very properly and sensibly, in order to reduce costs, written to the court setting out their reasons for opposing the application and stating that the plaintiff does not intend to attend this hearing unless required by me, which they have been told is not required.  That letter is dated 17th June 1999.   

As to the second of the four elements in the equation, the plaintiff's solicitors have pointed out that the first defendants and their advisers knew of the terms of the judge's judgment when it was delivered on 31st July 1998 and that there can therefore be no excuse for them to delay so long before seeking leave to appeal.  As to the third element, they have not suggested that an appeal by the first defendants would not have a reasonable prospect of success if an extension of time and permission to appeal were to be granted.  

That leaves the fourth element, prejudice, as to which the plaintiff's solicitors have referred at some length to post judgment negotiations to settle the dispute, which they say resulted in agreement in principle by 5th November 1998, an agreement which the defendants have since sought to renegotiate following the change of ownership of the second defendant, the football club.  They confirm that the plaintiff remains prepared to enter into that agreement in principle.  They add that between 31st July 1998 and 31st March 1999 the plaintiff has incurred over £15,000 in legal fees in relation to the negotiations.  

Mr Scamell, who appears for the first defendants, submits that those negotiations, having been without prejudice, were not correctly made the subject of an objection by the plaintiff's solicitors.  I think that that must be right.  They go further than saying simply that negotiations took place;  they actually go into the details of the negotiations, the solicitors having enclosed with their letter the draft of the agreed heads of terms and the draft of a deed of settlement.  

Even if I were to take the view that that material might properly be taken into account, it does not in my view amount to prejudice which is relevant to the question of extending time.  What I have to consider is the prejudice to the plaintiff caused by the seven and a half weeks' delay in applying to this court, and in that respect I do not think that prejudice, or any significant prejudice, has been shown.  

I return then to the reasons given for the delay.  Despite Mr Scamell's submissions, I continue to be of the opinion that they are unimpressive and that the delay is not one which is to be expected of a public authority in relation to a matter as important to them and their council tax payers as this matter evidently is.  I have asked him to communicate my view to the Council's Legal Department that they ought in future to be particularly careful to observe the time limits laid down by the rules of court in matters of this kind.  However, I have come to the conclusion, balancing all the factors as I must do, that this is a case where in the exercise of my discretion I ought to accede to this application and grant an extension of time and leave to appeal.    

There is, however, one further matter with which I must deal and that is this.  The plaintiff's solicitors have suggested that this is a case where it would be proper for me to carry out a summary assessment of the plaintiff's costs, it being clear, as I have already indicated, that it is entitled to its costs of this application.  They have put before the court the following costs in considering the application, liaising with the plaintiff and  drafting their letter:   
	Partner:   two and a half hours at £300 per hour.
	Counsel:   one hour at £150 per hour.  

Mr Scamell has not suggested that this is not a proper case for a summary assessment of costs, nor that the hourly rates are inappropriate, but he has objected to the full amount of the partner's time on the ground that part of it must have been taken up with preparing a letter containing for the most part inadmissible information.  I am prepared to take that into account, and I think that the rough and ready answer to the point would be to reduce the partner's time to two hours.  I therefore assess the costs at £750 plus VAT.  

I propose to make the payment of those costs one of the conditions for acceding to this application.  I direct that the appeal must be served and set down within 10 days from today and that the sum of £750 plus VAT shall be paid by the first defendants to the plaintiff before the expiration of that 10-day period, in default of which the appeal will not be allowed to proceed.   

Order:	applications for permission to appeal and an extension of time for appealing granted;  plaintiff's costs assessed at £750 plus VAT;  appeal to be served and set down within 10 days from today;  the sum of £750 plus VAT to be paid by the first defendants to the plaintiff before the expiration of that 10-day period, in default of which the appeal will not be allowed to proceed.