CE-Filing: let the midnight oil burn?

The Courts Electronic Filing system (CE-File) was first introduced in 2015. The system enables parties to issue claims and file documents electronically and to pay court fees online, 24 hours a day and all year round. Following an initial pilot period, the use of CE-File became compulsory in the Business and Property Courts in April 2017. A gradual roll-out across further Courts culminated in CE-File becoming mandatory for professional users of the Court of Appeal in February 2022. 

CPR PD51O (known as the Electronic Working Pilot Scheme) provides guidance on the implementation and use of the CE-File system. It runs until April 2023, although it is not expected to be withdrawn and is viewed as a pilot scheme because CE-File is still under development and in the process of further roll-out.

Generally, where a court gives a judgment, direction or order which requires an act to be done within a certain time frame, the time and date for compliance will be specified by the court.

However, there are circumstances in which the date for filing a document is specified in the direction or order, but the time is not. There is no explicit provision in CPR PD 51O which governs this scenario. Based on the latest case law developments, in some cases, such documents may be electronically filed up until midnight on the date specified.

Case law

The issue arose in the context of a claim brought in the Commercial Court against a number of Microsoft entities (Microsoft Ireland Operations Ltd & Ors v JJH Enterprises Ltd (trading as Value Licensing) [2022] EWAS Civ 1509 (11 November 2022)).  

The Microsoft entities wished to seek permission to appeal the refusal of their application for strike out / summary judgment of the claim against them. The court ordered that the extended time period for filing any application for permission to appeal was until 6 June 2022. No time was specified in the order. CPR 52.12(2) states the time period within which an appellant’s notice must be filed, but does not specify the time of day.  

In accordance with CPR PD51O, the Microsoft entities filed via CE-File an appellant’s notice at the Court of Appeal on 6 June 2022 at 16:52. The parties disagreed on whether the appellant’s notice had been filed out of time because it was filed outside of court office hours ie after 16:30.  

The question before the court was whether an appellant's notice filed with the Court of Appeal in accordance with CPR PD51O could be submitted at any time up until midnight on the final day of the permitted period or whether, generally speaking or in the case of an appeal from the Commercial Court, it had to be done before 16:30. 

A master declared the appellant’s notice had been filed on time on the basis that paragraph 2.1 of CPR PD51O effectively meant that documents could be filed at any time up to midnight. A review of that decision was requested. It is important to note that in the meantime, the Court of Appeal had refused the application for permission to appeal. Nevertheless, the issue of timings was still considered, given the importance of the procedural point to practitioners and court users.  

The Court of Appeal held that, where documents are filed via CE-File, there was no rule or practice direction requiring the filing to take place during court office hours. In fact, the premise of the CE-File system and the Electronic Working Pilot Scheme is that documents can be filed at any time, subject to some limited conditions, none of which applied in this case. Therefore, the appellant’s notice, having being filed via CE-File at 16:52 on the last date for compliance, was filed on time.

Can the midnight oil burn?

We are not there yet. This decision confirmed the general status quo that where a rule, practice direction or order specifies a date for filing, but not a time, the filing may be made electronically at any time up to midnight on the deadline date.

However, questions remain as to whether the latest decision only applies to the CE-filing of an appellant’s notice in the Court of Appeal, or whether it extends to the electronic filing of other documents in other courts. Even if the principle does apply more broadly, there is uncertainty about how that would work in practice and align with other CPR provisions and court guides.

For example, paragraph D18.2 of the Commercial Court Guide states: “If the Court orders that an act be done by a certain date without specifying a time for compliance, the latest time for compliance is 4.30pm on the day in question.”

Therefore, when filing in the Commercial Court pursuant to a court order that only specifies a date for compliance, it is best to err on the side of caution and file any documents via CE-File before 16:30. Any filing made after 16:30 risks being out of time and potentially subject to sanction against the non-compliant party.

Further, CPR PD5A and 5B provide that where a filing is received via fax or email after 16:00 but before 23:59, the date of receipt will be deemed the next day the court office is open. Therefore, claims that are not subject to CPR PD51O (i.e. County Court proceedings and some insolvency proceedings), as well as those that require the filing of physical documents, remain subject to practical time constraints and filings should be made before 16:00 if timings are critical.

Finally, CPR 2.8 sets out how to calculate any period of time for doing an act with reference to worked examples. CPR PD51O paragraph 8A explicitly states that, notwithstanding that the CE-File system is available for use 24 hours a day, CPR 2.8 applies to the timing of electronic filings in any event. Different rules will also apply to different types of documents.

Where does that leave us?

This is welcome clarification by the Court of Appeal and reassuring to those filing appellant’s notices at the Court of Appeal. However, there will undoubtedly be numerous issues that arise in the future and parties may look to rely on the Court of Appeal’s decision, particularly in circumstances where filings are made after 16:30 on the last date of compliance.

However, the point remains that, any court order or other provision requiring a filing by a specific time will take precedence. Therefore, it is always best to check directions and orders and ensure filings are made expeditiously and with plenty of time to spare, especially where there are potential limitation issues. In addition, all relevant CPR provisions and Court guidance should be reviewed to ensure compliance and avoid potential sanction.

Emily Mitcheson is a senior associate at Russell-Cooke LLP Russell-cooke.co.uk