Fletcher v Mr & Mrs John

Where a lower court determines an appeal or leave application under a fundamental misconception of the order being challenged, the appellate court may grant permission so that the error can be corrected. A litigant’s failure to clarify the position does not necessarily prevent that course, particularly where the litigant acts in person and the overriding objective in Part 1 of the Civil Procedure Rules requires the case to be dealt with justly. The resulting appeal should address the procedural error and the order actually challenged, rather than determine the underlying merits.

Mr Fletcher claimed payment for building work. The defendants disputed the quality of the work and counterclaimed damages. After the defendants failed to attend the trial, Deputy District Judge Wilkinson entered judgment for Mr Fletcher on 9 March 2000. District Judge Ing later set that judgment aside on condition that the defendants paid the invoiced sum into court. The defendants applied to appeal against that condition. His Honour Judge Hutton treated the application as concerning the earlier judgment and dismissed it on 4 September 2000. The central issue before the Court of Appeal was whether permission should be granted so that the mistaken approach could be corrected and the conditional order properly considered.

Application allowed. Lord Justice Peter Gibson held that permission to appeal should be granted.

1. The defendants’ application was directed against District Judge Ing’s order of 20 April 2000, which had set aside the earlier judgment subject to payment into court. It was not directed against the judgment of 9 March 2000, which had already been set aside.
2. His Honour Judge Hutton had proceeded throughout on a complete misconception. He believed that the application concerned the defendants’ failure to attend the March hearing and considered evidence directed to that issue. He did not consider the April order or its payment condition.
3. The defendants bore some responsibility. Mr John had accepted the judge’s misunderstanding and had not drawn attention to the order actually challenged. Nevertheless, the defendants were litigants in person. It would run counter to the overriding objective in Part 1 of the Civil Procedure Rules to deny them an opportunity to persuade the appellate court that an order made under such a fundamental misconception should be set aside.
4. The proposed appeal was limited in scope. The Court of Appeal would not determine the merits of the dispute concerning the building work. It would decide whether the judge’s order should be set aside and the matter remitted to the county court, so that the court could determine whether District Judge Ing’s order and its condition should be set aside or varied.

• Court of Appeal (Civil Division) — On 8 June 2001, in [2001] EWCA Civ 907, Lord Justice Peter Gibson allowed the defendants’ application for permission to appeal.
• Gloucester County Court — His Honour Judge Hutton dismissed the defendants’ application for leave to appeal on 4 September 2000, having treated it as concerning the earlier judgment rather than the conditional order of 20 April 2000.