Benson v Richards

An appellate court should adjourn an appeal where proceeding in the appellant’s absence creates a real risk of injustice and the appeal papers are not in a satisfactory condition. The court must apply the overriding objective and ensure that cases are dealt with justly. The appellant’s own delay and changes of legal representation remain relevant, particularly where the respondent has already suffered delay. An adjournment may therefore be granted while imposing firm directions to secure preparation and a final hearing date.

The defendant appealed from orders made by Her Honour Judge Alton in Telford County Court on 10 July and 1 August 2002. The first order found persistent and deliberate contempt of an earlier order requiring removal of a fence. The second imposed a three-month term of imprisonment.

The appeal was listed for hearing on 5 September 2002. The defendant was in prison, unwell, unable to attend or give instructions, and seeking fresh legal representation and amendments to her notice of appeal. The appeal papers were incomplete and substantial transcripts had only recently become available. The central issue was whether the hearing should be adjourned, and on what terms.

The Court of Appeal, in a judgment given by Lord Justice Peter Gibson and agreed by Lord Justices Brooke and Tuckey, unanimously granted the adjournment application.

1. Risk of injustice. Applying the overriding objective and the requirement that cases be dealt with justly, it would be unjust to proceed with an appeal against a continuing sentence of imprisonment when the appellant was absent with medical certification supporting her absence. There was a real risk of injustice if the appeal proceeded without her.
2. State of the appeal. The papers were not in a satisfactory condition. New solicitors had not been able to take proper instructions, transcripts of about 400 pages had only just been received, and further procedural steps, including a possible amendment to the notice of appeal and preparation of bundles and skeleton arguments, remained outstanding.
3. Balancing delay and fairness. The appellant’s difficulties were largely attributable to her own conduct, including successive changes of solicitors. The claimant’s need for prompt resolution was nevertheless accommodated by fixing the earliest available hearing date and imposing strict filing requirements.
4. The appeal was adjourned to 2 October 2002. The court declined at that stage to impose a deadline for removal of the fence, leaving any such application to be made to the court hearing the appeal. Documents were to be filed and served by 4.00 pm on 24 September, with the claimant’s skeleton argument due within 48 hours. The costs of the application were payable by the defendant.

• Court of Appeal (Civil Division): On appeal from orders of Telford County Court made on 10 July and 1 August 2002, the court adjourned the appeal hearing to 2 October 2002 and directed preparation of the appeal documents.