Lloyds TSB Bank Plc v Bennett & Anor

An appellate court should not interfere with a discretionary refusal to adjourn merely because another judge might have exercised the discretion differently. The relevant question is whether the decision was wrong or unreasonable in the circumstances.

Where a judge has allowed reasonable latitude, has received no direct explanation for a party’s absence, and must consider a history of adjournments and the displacement of other cases, refusal of a further adjournment may fall within the proper exercise of discretion. Permission to appeal should be refused where the proposed appeal has no real prospect of success.

Lloyds TSB Bank brought possession proceedings concerning domestic premises charged as security for the Bennetts’ indebtedness. The central issue at trial was whether the charge secured all monies owed or was limited to £15,000. His Honour Judge Cowell held that it was an all monies charge and ordered possession.

The Bennetts sought permission to appeal, arguing that the judge had wrongly refused a further adjournment when neither Mr nor Mrs Bennett attended. Permission had been refused on paper by Jonathan Parker LJ. The renewed application concerned whether the refusal was a wrong or unreasonable exercise of discretion and whether the proposed appeal had a real prospect of success.

1. Appellate approach. Lord Justice Mantell agreed with Jonathan Parker LJ that the proposed appeal had no real prospect of success. The issue was whether the refusal of the adjournment was a wrong or unreasonable exercise of the trial judge’s discretion. The fact that another judge might have exercised the discretion differently did not establish an appealable error.
2. Application to the circumstances. Judge Cowell had allowed Mrs Bennett latitude to attend and give evidence on either of the remaining trial days. No direct evidence was provided to explain her continued absence; the explanation was conveyed through counsel. The judge was also entitled to take account of the history of the proceedings, including previous adjournments and the effect of displacing other cases waiting to be tried.
3. The judge was entitled, on the material before him, to refuse a further adjournment. His conclusion that the charge was an all monies charge was reached on the evidence available. Although a different decision might have been open to another judge, the exercise of discretion was not shown to be wrong or unreasonable.
4. Disposition. The renewed application for permission to appeal was refused.

• Central London County Court: His Honour Judge Cowell held that the legal charge was an all monies charge and made an order for possession.
• Court of Appeal (Civil Division): Permission to appeal was refused on paper by Jonathan Parker LJ. Lord Justice Mantell refused the renewed application, holding that the proposed appeal had no real prospect of success.