Scott v Newton & Anor

An application for a second appeal succeeds only where the statutory threshold is met: an important point of principle or practice, or another compelling reason. In deciding whether to reopen a trial conducted in a party’s absence, the court should consider promptness, good reason for non-attendance and reasonable prospects of success, within the overriding objective. A commercial engagement will not ordinarily justify non-attendance where representation was possible and the party was not trial-ready. The application failed because there was no compelling reason, no real prospect of success, and further delay would prejudice the defendants.

The claimant in Scott v Newton & Anor bought restaurant premises, goodwill, fixtures and fittings. He claimed damages for allegedly defective equipment, while the defendants counterclaimed for the unpaid purchase price.

The trial judge refused an adjournment when the claimant did not attend, dismissed his claim and gave judgment for the defendants on the counterclaim. His Honour Judge Farnsworth dismissed the claimant’s appeal. Mance LJ refused permission on most grounds but directed a hearing on whether refusal of a further short adjournment was proportionate. The central issue before the Court of Appeal was whether the second-appeal threshold was met, particularly whether refusal of the adjournment caused a serious injustice amounting to a compelling reason.

Application dismissed. Lady Justice Hale delivered the judgment, and Lord Justice Keene agreed.

1. Second appeal. The application was a second appeal and could proceed only if the requirements of section 55(1) of the Access to Justice Act 1999 were satisfied. No important point of principle or practice had been identified. Nor had the applicant shown a serious injustice capable of constituting a compelling reason for a further appeal.
2. Failure to attend trial. The criteria associated with CPR 39.3 and rule 39(5) applied to an equivalent application made by way of appeal. The court had to consider whether the applicant acted promptly, had a good reason for non-attendance and had a reasonable prospect of success at trial, in the light of the overriding objective.
3. The applicant had acted promptly, but he lacked a good reason for not attending. His commercial commitment to opening another restaurant did not prevent him from sending a representative to pursue the adjournment application. He was also not ready for trial. The guidance in CPR Practice Direction 28 treated postponement of a trial as a last resort, and the lower court was entitled to proceed.
4. Merits. The September agreement, being expressly subject to contract, did not itself create a contract. It could nevertheless contain factual representations capable of founding damages if false and relied upon in entering a later contract. The warranty that the equipment was in working order did not represent that it would remain so for any period. The claimant had not shown reliance or defects by cogent evidence and had had ample opportunity to inspect the equipment. His claim therefore had no real prospect of success, and the counterclaim was not successfully defended.
5. Further delay would cause serious injustice to the defendants, who had a legitimate claim for payment. The application was dismissed with costs summarily assessed at £7,250.49. Any rehearing application was conditional on payment of the counterclaim.

• Court of Appeal (Civil Division): The second-appeal application was dismissed. The court held that no compelling reason or serious injustice had been shown. The judgment is reported at [2002] EWCA Civ 1743.
• Court of Appeal: On 11 May 2001, Mance LJ refused permission on the counterclaim and most other grounds, but adjourned one point for an on-notice hearing.
• County Court: His Honour Judge Farnsworth dismissed the claimant’s appeal on 11 July 2000.
• County Court: District Judge Tetlow dismissed the claim and gave judgment for the defendants on their counterclaim following the claimant’s non-attendance at trial.