Grimm v Newman

An appeal fixture should be vacated only where that course is necessary to do justice. The illness or unavailability of leading counsel does not, by itself, justify vacating a long-fixed hearing where other competent and experienced counsel can prepare the case adequately within the time available. The court must consider the interests of both parties, including the importance of the issues, the ability of replacement counsel to conduct the appeal, and any wasted costs. The application was therefore dismissed.

The defendants appealed against a judgment of Etherton J dated 1 November 2001, which awarded the claimant approximately £200,000 arising from allegedly negligent tax advice concerning offshore assets and a proposed transfer to his intended wife.

The appeal was listed for hearing over three days. Six days before the hearing, the defendants’ leading counsel became acutely unwell and was unable to prepare the case. The defendants applied to vacate the fixture. The central issue was whether the hearing could fairly proceed with other counsel, or whether vacation was necessary to do justice.

1. Application dismissed. The court held that the fixed appeal dates, arranged nearly a year earlier, should not be vacated unless vacation was necessary to secure a fair and proper determination of the appeal.
2. The relevant assessment required consideration of the practical ability of alternative counsel to master the issues in the time remaining. Having reviewed the parties’ bundles and skeleton arguments, the Vice-Chancellor concluded that competent and experienced leading or junior counsel could sufficiently prepare the tax issues and assist the court at the listed hearing.
3. The personal and professional consequences for the defendant of the judgment remaining outstanding were recognised, as was the potential waste of fees already paid to leading counsel. Those considerations did not outweigh the ability of other counsel to conduct the appeal fairly. The illness of leading counsel was unfortunate, but it did not make adjournment necessary.
4. Costs were ordered against the defendants. The costs of leading counsel’s attendance were excluded because the matter could properly have been handled by junior counsel.

• Court of Appeal (Civil Division): The defendants’ application to vacate the fixture for their appeal was dismissed. Costs were ordered against the defendants, excluding the costs of leading counsel’s attendance.
• Earlier decision: Etherton J gave judgment for the claimant on 1 November 2001 for approximately £200,000.