Tassell v National Westminster Bank Plc

An application to relist an application disposed of in a party’s absence is governed by the same considerations as setting aside an order made at trial under the Civil Procedure Rules 1998: promptness, a good reason for non-attendance, and a reasonable prospect of success. A good reason alone does not justify relisting where the underlying application has no reasonable prospect. A second appeal cannot ordinarily be used to introduce material that was available and could have been deployed earlier, since litigation requires finality. A reference to the European Court of Justice requires an identifiable question necessary to resolve the application; general complaints about banking practices are insufficient.

Victor Samuel Tassell and Marie Hetty Tassell sought to reinstate applications previously refused in their absence. Applications concerning one set of proceedings sought permission for a second appeal; another set concerned permission for a first appeal. Mr Tassell also sought a direction referring a question to the European Court of Justice. The applications arose from earlier proceedings involving a judgment debt, bankruptcy orders, alleged lack of disclosure, and proposed reliance on Land Registry material concerning a charge and the Consumer Credit Act 1974. The central issues were whether the applications should be relisted and whether any European law question required a reference.

Disposition

All four applications were refused. Lord Justice Chadwick was satisfied that the Court of Appeal was properly constituted by a single Lord Justice.

1. Under section 54(2) of the Supreme Court Act 1981, as amended by section 59 of the Administration of Justice Act 1999, a court exercising civil jurisdiction in the Court of Appeal is duly constituted by one or more judges.
2. The court’s power under the Civil Procedure Rules 1998 to relist an application dealt with in the applicant’s absence must be guided by the principles in rule 39.3(5): prompt action, a good reason for non-attendance, and a reasonable prospect of success. The requirements reflect the need for orderly court administration and mean that a further hearing serves no purpose where the application cannot realistically succeed.
3. Mr Tassell’s explanation for his absence was accepted for the purposes of the application. However, he did not show a reasonable prospect of success. The proposed second appeals were subject to the hurdles in section 55(1) of the Access to Justice Act 1999 and CPR 52.13. The proposed first appeals faced substantive difficulties concerning causes of action vested in the trustee in bankruptcy or in a company which Mr Tassell, as a bankrupt, could not represent.
4. The proposed new material concerning the charge and regulated-agreement issue was available, or could have been obtained, for use in the earlier proceedings. A second appeal was not a vehicle for reopening the underlying judgment debt on that basis. The need for finality in litigation therefore provided a further reason for refusing reinstatement.
5. The requested European reference was also refused. Mr Tassell identified no question which the court needed to decide with the assistance or guidance of the European Court of Justice under Article 243 of the Treaty establishing the European Community. General assertions that banking legislation should prevent oppressive conduct did not identify a proper reference question.
6. Mrs Tassell’s application was determined in her absence under rule 23.11. In light of her two earlier opportunities to attend, the uncertainty that she would attend independently after an adjournment, and the absence of any apparent additional contribution, no useful purpose would have been served by postponing the matter. A transcript was directed to be provided to her at public expense.

1. High Court of Justice, Chancery Division: Mr Justice Hart made the decision which was the subject of the proposed permission applications. No citation for that decision is stated in the judgment.
2. Court of Appeal (Civil Division): Lord Justice Chadwick refused the applications to reinstate the earlier permission applications and refused the proposed European reference: [2002] EWCA Civ 1446.