Nicholson v Warrington

An appellate court may refuse to adjourn and dismiss an appeal where the appellant gives only very late notice of non-attendance and offers no adequate reason for the absence. A challenge to a trial judge’s choice between conflicting accounts is ordinarily unpromising where the judge heard the witnesses over an extended hearing and assessed their credibility against contemporary documents. The court may record its provisional view of the merits to assist any later application to reinstate the appeal.

Philip Andrew Warrington appealed from an order of Mr Recorder Harrop in the Bristol County Court. The recorder had given Christopher Nigel Nicholson judgment for £44,506.51, with interest and costs, and had dismissed Warrington’s counterclaim for £3,276.88.

The dispute concerned competing accounts of an oral agreement relating to the purchase and resale of bearings. The trial occupied three days and depended substantially on witness credibility and contemporary documents. Warrington notified the court and Nicholson’s solicitors only on the day before the appeal that he would not attend, citing work commitments and inability to fund representation. The central issues were whether the appeal should be adjourned and, if reinstatement were later sought, whether the challenge to the recorder’s factual assessment had any worthwhile prospect of success.

The appeal was dismissed with costs. Lord Justice Simon Brown delivered the judgment, and Sir Patrick Russell agreed.

1. The appellant’s facsimile notification was sent only the day before the hearing. It gave no adequate reason for non-attendance beyond work commitments and inability to instruct counsel. The court regarded the request for a new date as insufficient and declined to adjourn the appeal.
2. The appeal was dismissed on that procedural basis. The court nevertheless considered it appropriate to indicate the apparent weakness of the merits in case the appellant later sought reinstatement.
3. The appeal essentially argued that the recorder had accepted the wrong account of the June 1992 agreement. The recorder had heard the parties’ detailed evidence over three days and had assessed their credibility by reference to contemporary documents. The Court of Appeal considered that an appeal founded merely on the contention that the trial judge had believed the wrong side had very slender prospects of success.
4. The recorder had identified documentary features supporting Nicholson’s account, including the loan evidence, correspondence referring to the 25 per cent mark-up, records of an agreed balance, and Nicholson’s unchallenged demand for payment. He had also made detailed assessments of the principal witnesses. The Court of Appeal considered that he was entitled to reach the conclusion he did.
5. Lord Justice Simon Brown stated that the appeal had no worthwhile prospect of success. Sir Patrick Russell expressly endorsed that assessment. The formal order was that the appeal be dismissed with costs.

1. Court of Appeal (Civil Division): In Nicholson v Warrington, [1998] EWCA Civ 639, the appeal was dismissed with costs. The court declined to adjourn after the appellant gave notice of non-attendance only the previous day.
2. Bristol County Court: On 25 October 1995, Mr Recorder Harrop gave judgment for Christopher Nigel Nicholson for £44,506.51, with interest and costs, and dismissed Philip Andrew Warrington’s counterclaim for £3,276.88.