Ashton Graham (A Firm) v Sherman

Permission to appeal should be refused where the proposed appeal has no prospect of success. A party seeking to set aside or stay an earlier order must give the opposing party proper prior notice unless there are grounds justifying a without-notice application. Unexplained delay, particularly where the application appears connected with an imminent bankruptcy hearing, supports refusal. Financial difficulty and the absence of legal representation do not excuse failure to notify the other side or justify a late application.

Ashton Graham (A Firm) v Sherman concerned a solicitor firm’s claim for losses arising from share transactions. The defendant was debarred from defending after failing to comply with a disclosure order, and judgment was entered for nearly £100,000.

The defendant later made repeated without-notice applications seeking to set aside or stay the judgment. Rimer J dismissed the application made on 26 April 2002 and subsequently refused permission to appeal. The defendant applied to the Court of Appeal for permission to appeal that order. The central issue was whether there was any proper basis for challenging the refusal of the without-notice application.

1. The Court of Appeal refused the application for permission to appeal. The application was hopeless because the order under challenge disclosed no arguable error and the proposed appeal had no prospect of success.
2. The decisive procedural difficulty was that the defendant had never given the claimant proper notice of his intention to seek relief from the judgment. This applied both to the earlier application before Deputy Master Behrens and to the application before Rimer J. The absence of notice was particularly significant because the claimant would have had matters to raise against a stay or set-aside order.
3. The application was made nearly eight months after judgment, without any adequate explanation for the delay. Rimer J was entitled to infer that the timing was motivated by the forthcoming bankruptcy petition hearing and an attempt to improve the defendant’s position at that hearing.
4. The defendant’s precarious financial position and difficulty finding affordable legal representation did not excuse the failure to notify the claimant or the prolonged delay. Rimer J had indicated that a renewed application could be made on proper prior notice, but the defendant did not take that course.
5. Rimer J was entirely correct to dismiss the without-notice application. Permission to appeal was therefore inevitably refused. Applications refused.

1. Court of Appeal (Civil Division) refused permission to appeal the order made by Rimer J on 26 April 2002: [2002] EWCA Civ 1794.
2. High Court, Chancery Division dismissed the defendant’s without-notice application to set aside the judgment pending an appeal and subsequently refused permission to appeal.