Southall Properties Limited v Ravinder Kumar Marya

Reinstatement of a permission-to-appeal application previously determined in the applicant’s absence requires both a satisfactory explanation for the absence and an identifiable material matter overlooked by the earlier judgment which could have affected the decision. Mere absence, the absence of a newly prepared bundle, or a wish to introduce evidence available earlier is insufficient. A challenge to refusal of an adjournment on health grounds requires a real prospect of showing that no reasonable judge, having seen the relevant medical certificate, could have made that decision.

The applicant had brought a claim concerning damage to stock left on the respondent’s premises. His Honour Judge Marcus Edwards dismissed the claim on 21 January 2000 after refusing an adjournment application; the applicant then left and was absent during the trial.

Rix LJ dismissed an application for permission to appeal on 20 July 2000 in the applicant’s absence. Robert Walker LJ dismissed an application to reinstate that application on 24 November 2000, also in the applicant’s absence. The applicant applied again to the Court of Appeal. The central issue was whether he had explained his earlier absences and identified material matters overlooked by the previous decision-makers.

1. Application refused. The applicant failed to establish the conditions required for reinstatement of a permission-to-appeal application previously determined in his absence.
2. Such an applicant must provide a satisfactory explanation for the absence on the earlier occasion or occasions. He must also identify a material matter which the earlier judgment overlooked and which could have affected the decision. Without both elements, refusal to reinstate is correct.
3. A challenge to the County Court’s refusal to adjourn on health grounds disclosed no real prospect of success. The applicant had sought an adjournment, but there was no evidence before the Court of Appeal as to his condition. The judge had seen a medical certificate and used his own observations. The decision could only be successfully challenged if no reasonable judge, seeing the certificate, could have made it.
4. The asserted absence of a bundle before Rix LJ and Robert Walker LJ did not identify any overlooked matter. The judgments showed that papers had been available, whether or not they were in a bundle prepared by the applicant.
5. The points concerning the lien and the value of the stock did not assist. The County Court judge had held that the same duty to take reasonable care applied whether or not a lien was exercised. Evidence of value should have been put before that judge and was unsupported in any event. A separate application to the County Court judge for review was an independent possible course, on which the Court of Appeal expressed no view.

• Court of Appeal (Civil Division): the application to reinstate the permission application was refused on 27 March 2001.
• Uxbridge County Court: His Honour Judge Marcus Edwards dismissed the underlying claim on 21 January 2000 after refusing an adjournment application.