Noel-Johnson v Gopee & Anor

Where a civil order was made in a party’s absence, the party’s first application should ordinarily be made to the court that made the order, seeking reconsideration and setting aside under rule 39.3.3, rather than to the Court of Appeal by an application for permission to appeal. The original judge must determine the merits, including any delay and its explanation, on the evidence before that court. The Court of Appeal should not prejudge that decision.

An order requiring the defendants to carry out repairs by a specified deadline was made in the Mayors and City of London Court in their absence. The defendants sought permission to appeal in the Court of Appeal, believing that to be the appropriate route. The central issue was whether the Court of Appeal should entertain the challenge or whether the defendants should first apply to the original court to set aside its order.

Decision

1. Application refused. The application for permission to appeal was dismissed.
2. Lord Justice Judge held that, because the order had been made in the defendants’ absence, the first court to which their attention should be directed was the court that made the order, not the Court of Appeal. That was the effect of current rule 39.3.3. The defendants should apply to the county court for the order to be reconsidered and set aside.
3. The judge hearing that application was required to determine the merits and issues raised on the evidence before him. He was also to consider the delay, the reasons for it and any impact on others involved. Nothing in the Court of Appeal’s short judgment was intended to prejudge or direct that decision.
4. The defendants’ mistake about the proper procedural route was understandable, particularly given their difficulties obtaining legal representation. The transcript was to be supplied urgently, at public expense, to the county court judge and the Citizens Advice Bureau without further correction.

• Court of Appeal (Civil Division): Application for permission to appeal against the order of His Honour Judge Marr-Johnson was refused and the application dismissed.
• Mayors and City of London Court: On 28 March 2001, an order was made in the defendants’ absence, including mandatory repairs to be completed by 4 pm on 30 June 2001.