Otobo v Otobo

In appellate listing matters, a fixture should not ordinarily be vacated merely because counsel has a professional commitment. Applications based only on counsel’s convenience are seldom granted. Where the circumstances nevertheless carry weight, the court may adopt a proportionate case-management solution. That may include retaining the date for a permission hearing, permitting competent replacement counsel to appear, and postponing the substantive appeal to a later floating fixture.

The respondent husband applied to vacate a fixture listed for an oral, on-notice hearing of the appellant wife’s application for permission to appeal, with the appeal to follow if permission were granted. His counsel relied on a professional commitment, the potential unfairness to the husband of proceeding without counsel of choice, and difficulties in communicating with the husband in Nigeria. The wife took a neutral position.

The central issue was how the Court of Appeal should deal with the fixture while maintaining fairness and avoiding unnecessary delay.

1. Application and listing principle. The court stated that directions of this kind cannot ordinarily be fixed to counsel’s convenience. Applications to vacate appellate fixtures on that ground are seldom, if ever, granted.
2. Proportionate solution. The respondent’s circumstances nevertheless had weight. The court therefore retained 18 July 2001 for determination of the outstanding application for permission to appeal, to be heard on notice. It considered that the husband would not suffer substantial prejudice if other counsel presented his case, because the court would then determine only whether permission should be granted and competent counsel could make the necessary submissions.
3. Substantive appeal. If permission were granted, the appeal was directed to float on 2–3 August 2001.
4. Order. The fixture was varied accordingly. The costs of the application were ordered to be costs in the application.

• Court of Appeal (Civil Division): The matter came from the High Court of Justice, Family Division, before Mr Justice Johnson. The Court of Appeal varied the fixture so that the permission application would be heard on 18 July 2001, with any substantive appeal to float on 2–3 August 2001.