Matin v Choudhury & Ors

On a second appeal, permission is available only where the case raises an important point of principle or practice, or where there is another reason for permission. The Court of Appeal alone has power to grant it.

Failure to comply with an unless order requiring procedural steps and payment of costs may justify striking out a claim. An appeal will not succeed without an error of law, a wrong approach, or a material basis for alleged bias. A respondent’s non-attendance is not itself a ground of appeal.

Mr Abdul Matin brought libel proceedings against several committee members of the North London Sylhety Community and Welfare Association. Following interlocutory proceedings, Master Eyre made an unless order requiring him to apply for a case management conference and pay costs. He failed to comply, and the claim was struck out on 4 April 2000.

A Deputy Judge of the Queen’s Bench Division dismissed Mr Matin’s appeal on 15 May 2000. Mr Matin renewed his application for permission to appeal. He was absent from the hearing, and a McKenzie friend sought an adjournment because of an alleged shoulder injury. The central issues were whether the second-appeal permission threshold was met and whether the lower courts had erred in striking out the claim.

Disposition

Lord Justice May refused the requested adjournment and the renewed application for permission to appeal. The application had no prospect of success.

1. The proposed appeal was a second appeal. Under section 55 of the Access to Justice Act 1999 and CPR r 52.13, only the Court of Appeal could grant permission. Permission required an important point of principle or practice, or another reason justifying permission. No such basis was present.
2. Mr Matin had failed to comply with the unless order of 15 September 1999. He had not applied to fix a case management conference and had not paid the costs ordered. It was therefore open to Master Eyre to strike out the claim and to the Deputy Judge to uphold that decision.
3. The decisions below were discretionary decisions available on the evidence and material before the judges. No error of law or application of a wrong test was shown. The failure to pay costs was particularly serious because the defendants were acting in person, and there was no evidence that Mr Matin was unable or unwilling to pay the relatively small sums ordered.
4. The defendants were not obliged to attend the earlier appeal hearing, so their absence provided no ground of appeal. There was also no material supporting the allegation that Master Eyre had been impartial.

The formal order was: application refused.

• Court of Appeal (Civil Division) — Renewed application for permission to appeal refused; the requested adjournment was also refused: [2001] EWCA Civ 37.
• Queen’s Bench Division, Deputy Judge — Appeal against Master Eyre’s order dismissed on 15 May 2000.
• Master Eyre — After non-compliance with an unless order, the claim was struck out and the action dismissed on 4 April 2000.