Brcic v Halifax Plc

An appellate court cannot properly assess an application concerning an earlier order without the underlying applications, relevant evidence and the reasons, if any, given below. Serious allegations about the conduct of a lower-court hearing require a transcript or other reliable record. A judge may relist an application and require the necessary material, including assistance from the opposing party. If compliance is difficult, the applicant should seek variation of the directions or a stay from the judge who made them. The Court of Appeal will not interfere with case-management directions intended to enable the appellate process to proceed properly.

The applicant had obtained mortgage finance for a flat. The Central London County Court made an order for possession and payment of the mortgage debt, while allowing an application under section 36 of the Administration of Justice Act 1970 to seek postponement of possession on proof of proposals to pay the debt.

A county court judge dismissed two such applications but extended the possession date to 30 November 2001. On an application for permission to appeal, Patten J required the applicant to provide the county court applications, witness statements and transcripts, and relisted the matter. The applicant sought permission to appeal to the Court of Appeal against those directions, alleging misconduct, lack of reasons and human-rights violations. The issue was whether Patten J could properly proceed without the underlying material.

1. Application refused. Lord Justice Chadwick dismissed the application for permission to appeal against Patten J’s order of 11 October 2001. There was no prospect that the order would be disturbed.
2. Patten J was entitled, and in the circumstances required, to obtain the applications made to the county court, the evidence placed before it and the reasons, if any, given by His Honour Judge Cook for dismissing them. The proposed appeal alleged conflict of interest, bullying, abuse of power, disregard of legal points and breaches of human rights. Those allegations could not properly be assessed without a reliable account of what occurred at the hearing.
3. The absence of reasons could itself provide a powerful ground of appeal. That made it especially important for the High Court, exercising its appellate function, to see the transcript or other record of the county court decision. It was also open to Patten J to require Halifax to attend the adjourned hearing so that the court could understand its intentions.
4. If the applicant could not obtain the applications or a transcript, the proper course was to return to Patten J, explain the difficulty and seek variation of the order. She could also seek a stay of the possession order. The Court of Appeal would not intervene merely because consideration of permission to appeal had been postponed until the necessary material was available.
5. There was no evidence of an imminent bailiff’s appointment. A transcript of the judgment was ordered to be provided to the applicant at public expense.

1. Central London County Court: on 4 September 2001, His Honour Judge Cook dismissed the applicant’s applications concerning postponement of possession under section 36 of the Administration of Justice Act 1970, but extended the possession date to 30 November 2001.
2. Queen’s Bench Division: on 11 October 2001, Patten J directed the applicant to provide the underlying applications, witness statements and transcripts, and relisted the application for permission to appeal.
3. Court of Appeal (Civil Division): on 20 December 2001, the application for permission to appeal against Patten J’s order was refused. A transcript of the judgment was to be provided to the applicant at public expense.