Chitolie & Anor v Henmans Solicitors & Ors

The Court of Appeal may refuse to reopen an order made when a party was absent where the party had a fair opportunity to attend and no sufficient injustice is shown. A person who leaves part-way through a hearing cannot automatically rely on the rule permitting an application to be relisted after non-attendance. A person who is not a party has no standing to pursue another person’s proceedings merely by purporting to act on that person’s behalf. A person barred from conducting litigation under the Access to Justice Act 1999 requires specific permission in the particular case. Permission to address one judge does not confer general authority to act as a litigation friend or representative.

The proceedings comprised three applications. Christine Hanson sought reinstatement or permission to challenge orders connected with the striking out of her negligence claim against solicitors and other defendants. Master Ungley had struck out the action after she left the hearing. Roderick Evans J refused to relist or set aside that order, and Pill LJ refused permission to appeal.

A separate application concerned an order made by Eady J in Grepe v Loam form, which restricted further applications without the judge’s permission. Dick Chitolie, who was not a party to the underlying action, joined that application and sought permission to appeal an order made by Grigson J. The central issues were whether the applications could properly be brought, whether the earlier orders should be reopened, and whether Mr Chitolie could act for Ms Hanson.

1. Applications refused. The Court of Appeal refused all three applications and made no order as to costs. Lord Justice Rix agreed with Lord Justice Schiemann.
2. Part 23.11 of the Civil Procedure Rules gives the court a discretion to relist an application where an applicant or respondent failed to attend and an order was made. The rule appeared directed principally to non-attendance at the beginning of the hearing and did not immediately address a person leaving part-way through. In any event, the power remained discretionary.
3. The court would not generally set aside an order made in a party’s absence where that party had the opportunity to attend and had not shown a sound reason for failing to do so. Reopening was justified only where the circumstances disclosed a material injustice. There was no realistic prospect of success in the challenges to the orders considered by Pill LJ.
4. The Grepe v Loam order was effective. The use of the word leave rather than permission did not invalidate it. Ms Hanson was bound by the order and could not make the relevant application without first obtaining the judge’s permission. Since that permission had not been given, there was no proper application before the Court of Appeal.
5. Mr Chitolie was not bound by the order because he was not named in it, but he had no personal interest in the action. If he purported to act for Ms Hanson, he required lawful authority and would be caught by the order. Under sections 27 and 28 of the Access to Justice Act 1999, he could not conduct litigation without permission in the particular case. Permission previously given to address Roderick Evans J did not make him a litigation friend, confer a general right of audience, or authorise him to act for another person elsewhere.

• Court of Appeal (Civil Division): Refused three applications, including permission to appeal and applications for reinstatement.
• Queen’s Bench Division: Roderick Evans J refused to relist or set aside the striking-out order and refused permission to appeal.
• Earlier procedural orders: Master Ungley struck out the action. Eady J made a Grepe v Loam-form order, and Grigson J made the order challenged by the third application.