Perotti v Collyer-Bristow

Where a party does not attend a hearing, the court may proceed in that party’s absence under the Civil Procedure Rules. An adjournment is not required merely because the absent party may later seek to set aside the order, particularly where the merits indicate no reasonable prospect of success. Where the absent party had a practical reason for non-attendance, the Court of Appeal may consider the correctness of the underlying judgment when dealing with permission to appeal. The application should be heard on notice so that the successful party can make submissions. A party may listen to the hearing tape and prepare a transcript at personal expense; public funding may be limited to the judgment itself.

The claimant brought negligence proceedings against a firm of solicitors and counsel. An application for judgment in favour of counsel was first listed before Neuberger J, but was adjourned after the claimant objected to that judge hearing it. Lloyd J subsequently heard the application in the claimant’s absence and gave judgment under Part 24, concluding that the pleading disclosed no claim against counsel with any chance of success.

The claimant sought permission to appeal, alleging procedural unfairness, breach of Article 6.1, and error in the merits decision. The Court of Appeal considered whether Lloyd J should have proceeded in the claimant’s absence and how the permission application should be advanced.

1. Applications adjourned. They were to be relisted on notice as applications for permission to appeal, with an appeal to follow if permission were granted.
2. The objection that Lloyd J should have recused himself because he had known Mr Hinks at the Bar was misconceived. The connection was insufficient to warrant recusal, and it was the judge’s duty to hear the matter.
3. Under CPR 39.3, the court may proceed with a trial in a party’s absence. The rule also permits the judgment to be set aside where the applicant acts promptly, has a good reason for non-attendance, and has a reasonable prospect of success. Because Lloyd J had concluded that the claim against Mr Hinks had no reasonable chance of success, an adjournment merely to enable an application under CPR 39.3 would have served no useful purpose.
4. The claimant’s eviction on the hearing date provided a practical reason for his absence. It was therefore appropriate for the Court of Appeal to consider the correctness of Lloyd J’s conclusion, although it could not do so without the judgment transcript.
5. The public purse should not pay for a transcript of the proceedings. The claimant could listen to the tape and prepare a transcript at his own expense, while obtaining a copy of the judgment at public cost if necessary.
6. The merits issue was to be considered at a hearing on notice, with a skeleton argument from Mr Hinks to be filed within ten days unless further time were sought. The sole issue on relisting was whether Lloyd J was right to give judgment for Mr Hinks.

• Court of Appeal (Civil Division): On 23 August 2002, Lord Justice Aldous adjourned the applications for permission to appeal and directed that they be relisted on notice.
• Chancery Division: On 24 May 2002, Lloyd J heard an application in the claimant’s absence and gave judgment for Mr Hinks under Part 24, concluding that the pleading disclosed no cause of action with a chance of success.