Hoath v Vooght & Ors

On an application for permission to pursue a second appeal, the Court of Appeal may proceed despite a party’s absence where the circumstances do not justify an adjournment and the proposed appeal has no realistic prospect of success. A second appeal is available only where the case raises an important point of principle or practice, or there is another compelling reason, under the Administration of Justice Act 1999. Points challenging a default judgment should ordinarily be raised when the judgment is obtained. A later attempt to reopen such points will not be entertained where they have already been considered and the proposed appeal is hopeless.

Mr Hoath, an undischarged bankrupt, applied for permission to appeal from an order made by Neuberger J in the Chancery Division on 8 June 2000. The application was treated as a second-tier appeal application. Mr Hoath was absent because he had been admitted, or was being admitted, to hospital. His solicitor, acting pro bono, attended and explained the medical circumstances. Counsel also attended for the Official Receiver and Mr Hoath’s former wife.

The proposed appeal concerned enforcement of a default judgment obtained in 1991. The points raised included whether some bills were interim bills on which solicitors could not sue, whether service on the doorstep was effective while Mr Hoath was abroad, whether judgment had been entered prematurely, and whether a solicitor’s certificate was false. The central issue was whether the appeal should be reinstated or pursued notwithstanding the earlier consideration of those matters.

1. Application dismissed. The Court of Appeal refused to reinstate the appeal. A rehearing in Mr Hoath’s presence would serve no useful purpose and would merely prolong the consequences of the impending possession proceedings.
2. Proceeding in the applicant’s absence was a proper case-management decision. Counsel were present, no application for an adjournment had been made so far as the court knew, possession of the applicant’s home and farm was imminent, the proposed matter was a second appeal, and the prospects of success appeared hopeless. The court accepted the solicitor’s account of the applicant’s illness but considered that it was neither possible nor necessary to investigate the sequence of events further.
3. Under section 55 of the Administration of Justice Act 1999, a second appeal could be entertained only if it raised an important point of principle or practice or there was some other compelling reason. The proposed appeal did not satisfy that threshold.
4. The objections concerning interim bills, service of process, premature judgment and the alleged false certificate were matters which, if relied upon, should have been raised in 1991 when the default judgment was obtained and statutory demands were served. The Court of Appeal had already considered the relevant points in 1995. It was not realistic for the court in 2001 to reopen them or depart from that earlier conclusion.
5. The court expressed considerable sympathy for the applicant’s circumstances, but sympathy did not provide a sufficient procedural or legal basis for reinstatement. The formal order was: Application dismissed.

• Chancery Division: Neuberger J made the order under challenge on 8 June 2000.
• Court of Appeal (Civil Division): On 12 July 2001, Lord Justice Robert Walker dismissed the application for permission to pursue or reinstate the second appeal.