Tracy & Anor v Jones

A party’s procedural right is to have a matter listed at a notified time with an opportunity to attend and make oral representations. A hearing remains valid when the party is absent after an adjournment has been refused. Absence therefore does not, by itself, justify reopening the decision. Under CPR 52.16(6), a reconsideration hearing is available only for a single judge’s or court officer’s decision made without a hearing. Where medical evidence gives no reliable indication that attendance will become possible by the proposed date, the court may proceed, particularly where practical alternatives such as care arrangements or representation have not been pursued. Separate applications may properly require separate fees.

The claimants sought an adjournment of two applications concerning an earlier decision by Simon Brown LJ, made in their absence, refusing permission to appeal. They also sought reinstatement and a further hearing before two Lord Justices. The underlying dispute concerned the costs of a High Court hearing held on 20 July 1992 before Mr Justice Lightman. The central questions were whether the earlier listed hearing was valid despite the claimants’ absence and whether CPR 52.16 entitled them to a further hearing or review.

Applications refused. Lord Justice Kay, sitting alone, held as follows.

1. Adjournment. The medical evidence showed that Mr Tracy was unfit to travel and dependent on his wife, but it gave no reliable indication when that position might change. The proceedings concerned costs arising from a hearing more than ten years earlier, so final resolution was important. The defendant’s interest in resolving the costs issues was relevant regardless of whether her costs were funded by legal aid. The claimants had been given the alternatives of arranging care for Mr Tracy or obtaining representation, but had pursued neither.
2. Validity of the earlier hearing. A party’s right was to have the matter listed at a notified time with an opportunity to attend and make oral representations. The application before Simon Brown LJ had been listed, the judge was available and willing to hear representations, and the adjournment application had been refused. It was therefore a valid hearing. The absence of the applicant and the lack of oral submissions provided no basis for reopening the merits.
3. CPR 52.16. Paragraph (6) applied only where the single judge’s or court officer’s decision had been made without a hearing. The earlier permission application had been made with a hearing for that purpose. The deputy master was therefore right to refuse to re-list it under that provision. A separate application would require a separate fee, and there was nothing improper in that direction.
4. The earlier decision was binding on the applicant. The application for permission to appeal had been refused, there was no right to a further hearing or to continue making applications concerning the same matter, and both present applications were refused. A transcript was to be provided at public expense.

• Court of Appeal (Civil Division) ([2002] EWCA Civ 1903): Lord Justice Kay refused both applications.
• Court of Appeal (single Lord Justice): Simon Brown LJ dealt with the permission application on 10 July 2002 after refusing an adjournment. The judgment states that the application was decided in the applicant’s absence and that permission to appeal was refused.
• High Court (Chancery Division): the underlying dispute concerned the costs of a hearing held on 20 July 1992 before Mr Justice Lightman. No citation or disposition of that decision is stated.