Audergon v La Baguette Ltd & Ors

An appeal is ordinarily a review of the lower court’s decision. A rehearing under Civil Procedure Rules r 52.11(1)(b) is exceptional and depends on the interests of justice in the individual appeal. Fixed criteria should not restrict that discretion, but a party’s wish to develop its case more fully does not justify a rehearing where there was no unfair procedural constraint below.

An automatic stay under the transitional Practice Direction is a sanction for CPR r 3.9. The court must consider all relevant circumstances, including the listed matters, but need not address them separately or mechanically. On review, an appellate court may not substitute its view merely because reasonable judges could differ. Substantial delay which makes a fair trial difficult may justify refusing to lift the stay and striking out the action.

The claimant brought proceedings concerning her alleged interests in a company, a wine-bar business and the proceeds of a later sale. After lengthy inactivity, the action was automatically stayed under the Practice Direction supplementing CPR Pt 51.

Chief Master Winegarten refused to lift the stay because the delay made a fair trial of disputed oral arrangements difficult. On appeal, Rimer J held a rehearing, lifted the stay, permitted an amended pleading and gave case-management directions. The defendants appealed.

The central issues were whether Rimer J was entitled to proceed by rehearing rather than review, whether the automatic stay was a CPR r 3.9 sanction, and whether the Master’s refusal to lift the stay was wrong or unjust.

1. Appeal allowed unanimously. Lord Justice Jonathan Parker, with whom Lord Justices Tuckey and Pill agreed, set aside Rimer J’s order and restored the Master’s order, varied so that the action was struck out.

2. CPR r 52.11 makes review the ordinary appellate process. A rehearing is permitted only where the appeal court considers it just in the particular appeal. The court followed Tanfern v Cameron-MacDonald [2000] 1 WLR 1311 and Asiansky Television plc v Bayer-Rosin [2001] EWCA Civ 1792: the discretion should not be confined by fixed criteria, but it must not be used merely to give a party more time to present a case.

3. Rimer J erred in ordering a rehearing. He had made no criticism of the Master’s extempore judgment or of the Master’s decision not to read every item of evidence. The defendants’ apparent consent was not fully informed because it was not explained that a rehearing would permit a fresh exercise of discretion and remove the advantages of review. There was no procedural irregularity making the hearing unjust.

4. An application under paragraph 19(2) of the Practice Direction was an application for relief from a sanction under CPR r 3.9. However, r 3.9 did not require a judgment to work through a separate checklist. The court had to consider all relevant circumstances in accordance with the overriding objective and give sufficient reasons.

5. Reviewing the Master’s decision, the court held that it was neither wrong nor unjust. The Master had addressed the central issue: whether the considerable delay still permitted a fair trial. His conclusion that a fair trial would be difficult was within the generous ambit of reasonable disagreement identified in G v G (Minors: Custody Appeal) [1985] 1 WLR 647. The action was therefore struck out rather than left stayed indefinitely.

• Court of Appeal (Civil Division): allowed the defendants’ appeal, set aside Rimer J’s order and restored the Master’s order with a variation striking out the action: [2002] EWCA Civ 10.
• High Court, Chancery Division (Rimer J): on 8 March 2001 allowed the claimant’s appeal after proceeding by rehearing; lifted the automatic stay, permitted amendment and gave directions.
• High Court, Chief Master Winegarten: on 10 July 2000 refused to lift the automatic stay because delay made a fair trial difficult, and made no order on the claimant’s amendment application or the defendants’ cross-application.