Solomon v Thai Silk (UK) Ltd & Ors

The Court of Appeal cannot hear an appeal against its own order. An appellant’s notice directed to such an order may be treated as an application to reinstate the earlier application. Reinstatement is discretionary. The court must balance fairness to the absent applicant against prejudice, expense, delay, the administration of justice, proportionality and finality. Repeated opportunities to pursue an appeal, hopeless merits, and prolonged burden on the successful party may justify refusal. A later judge should not interfere with a discretion exercised by the full court merely because a different view might be possible.

The defendants had been ordered by Judge Styler in the Derby County Court to meet guarantee liabilities owed to the claimant. Their applications for an extension of time and permission to adduce fresh evidence were refused, and successive applications for permission to appeal were dismissed. A full Court of Appeal dismissed a renewed application on 5 March 1999 when the defendants were absent. The defendants later lodged an Appellant’s Notice seeking to challenge that order. The central issues were whether the notice could be entertained, whether the earlier application should be reinstated, and whether the interests of justice required the court to revisit the full court’s discretionary decision.

Application dismissed. Lord Justice Robert Walker sat alone and treated the Appellant’s Notice as an application to reinstate the permission application previously dismissed by the full court.

1. Jurisdiction and characterisation. The Court of Appeal had no power to hear an appeal against its own order. The notice therefore had to be considered, if at all, as an application to reinstate the earlier application, which had been dismissed in the defendants’ absence.
2. Fairness and case management. The full court had faced a difficult management decision after a lengthy history of litigation and repeated delays. One defendant had been taken ill and the other had been delayed in reaching court, but counsel for the claimant was present and the matter had already been repeatedly considered. Proceeding with the hearing was fair in the circumstances and avoided further expense and delay to the successful claimant.
3. Finality and appellate discretion. The full court had concluded that any appeal would be hopeless. The defendants had exhausted every possible avenue of appeal, notwithstanding their genuine sense of grievance. Even if a different view of the earlier discretion were possible, it would not be right for the present judge to interfere with the discretion exercised by the full court. Proportionality and finality required the matter to end.
4. The application to reinstate was dismissed. No separate costs order was stated.

• Court of Appeal (Civil Division): A full court dismissed the renewed application for permission to appeal on 5 March 1999. The present court treated the later Appellant’s Notice as an application to reinstate that application and dismissed it.
• Derby County Court: Judge Styler entered judgment against Thai Silk and the directors on the guarantee liability after trial on 12 August 1994.
• Intervening applications: Registrar Adams refused an extension of time and permission to adduce fresh evidence on 13 June 1995. Kennedy LJ dismissed the appeal from that order on 27 March 1997. A further application was dismissed by the Vice-Chancellor and Potter LJ on 17 December 1997.