• Procedural point of practical importance to all legal practitioners engaged in commercial litigation
• Vice-President of the Court of Appeal has directed that the question as to whether the correct filing time is 4:30pm or 23:59pm shall be determined at an oral hearing.

London, 22 August 2022: ValueLicensing, a UK-based preowned software licence reseller, announced that a date has now been set by the Court of Appeal for 9 November for an oral hearing to consider the issue of the correct filing time under the procedural rules applying to commercial litigation.

This unusual situation arose after lawyers for Microsoft filed documents requesting permission to appeal electronically at 4:52pm on 6 June 2022, via the Electronic Working Scheme (known as CE File), which is mandatory. Microsoft is the defendant in a standalone High Court damages claim brought by ValueLiensing in April 2021 alleging that the Seattle-based multinational abused its dominant position when it engaged in conduct that eliminated the vast majority of preowned software licences from the market.

ValueLicensing’s position is that Microsoft’s deadline for filing the documents in question in the Court of Appeal on 6 June 2022 was 4:30pm, and that its filing was therefore made 22 minutes late, based on paragraph D18.2 of the Commercial Court Guide which 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.

In an Order dated 29 June 2022, Master Bancroft-Rimmer of the Civil Appeals Office took the view that the Commercial Court Guide does not apply to the Court of Appeal and that therefore Microsoft’s documents were lodged on time because it could file anytime up to 23:59pm when using CE File.

ValueLicensing then requested a review of that decision in view of the practical importance for all lawyers engaged in commercial litigation in the courts in England and Wales. The Vice-President of the Court of Appeal subsequently directed that ValueLicensing’s request for reconsideration should be determined at an oral hearing.

Jonathan Horley, founder and Managing Director of ValueLicensing said: “We are pleased that this procedural question is going to be thoroughly aired and determined by a Court of Appeal judge. When we saw that Microsoft had filed its documents 22 minutes after 4:30pm, we felt that it was important to point out that on our interpretation of the procedural rules, that filing was late. Barristers and solicitors who engage with the Commercial Court and the Appeal Court will no doubt be closely monitoring the outcome, given the important practical implications for their day-to-day practice.”

Further information about ValueLicensing’s claim against Microsoft can be found on the plaintiff’s Blog. On 3 August, ValueLicensing consented to Microsoft being given an extension until 30 September 2022 to file its defence in the High Court.