John & Anor v Fletcher

Where an appellate judge misunderstands which order is under challenge and consequently decides a different issue, the resulting decision is unsafe and should be set aside. The application must be restored for determination of the issue actually raised. In deciding whether to impose a condition requiring payment into court, the court should consider the parties’ conduct, means and the overall duty to act fairly between them. Relevant circumstances concerning a party’s earlier absence may remain open for consideration where the earlier judge did not adjudicate them.

The claimants appealed from the Gloucester County Court’s dismissal of their application for leave to appeal. Their application concerned a condition imposed by Deputy District Judge Ing on 20 April 2000, requiring payment into court before an earlier order made in their absence would be set aside.

Judge Hutton treated the application as concerning the earlier recovery order of 9 March 2000. He therefore considered whether Mr John had been too ill to attend that hearing, rather than whether the payment condition should be set aside or varied. The central issue was whether the dismissal resulted from a fundamental misconception of the order and issue before the judge.

Appeal allowed. The Court of Appeal restored the claimants’ application for leave to appeal the order of Deputy District Judge Ing for rehearing before a county court judge.

1. Lord Justice Potter held that Judge Hutton proceeded on a fundamental misconception. The application before him concerned the order of 20 April 2000 and its condition requiring payment into court. Instead, he treated it as an application concerning the earlier order of 9 March 2000 and revisited the claimants’ failure to attend that hearing. He did not address the inability to pay the required sum. The resulting decision could not stand.
2. The fact that the claimants, who were litigants in person, had contributed to the confusion did not justify deciding an application that was not properly understood. The overriding objective required that they have an opportunity to persuade the court that the order made under the misconception should be set aside.
3. At the rehearing, the substantive issue would be whether the payment condition should be imposed in light of the claimants’ conduct, their means and the court’s overall duty to act fairly between the parties. Deputy District Judge Ing had not adjudicated whether Mr John had good reason to be absent from the earlier hearing. That question, including the absence of a medical certificate, remained relevant to the overall discretion at the rehearing.
4. Lord Justice Rix agreed. The formal order was that the application be allowed.

• Court of Appeal (Civil Division): allowed the appeal and restored the application for leave to appeal the order of Deputy District Judge Ing for rehearing: [2001] EWCA Civ 2076.
• Gloucester County Court: Judge Hutton dismissed the claimants’ application for leave to appeal on 4 September 2000, having treated it as concerning the earlier recovery order rather than the payment condition.
• Gloucester County Court: Deputy District Judge Ing ordered on 20 April 2000 that the earlier recovery order be set aside only if the claimants paid £2,631.32 into court.