S, Re

An appellate court may strike out pending applications where the applicant fails to attend. An appeal against a discretionary order will not succeed where the lower court’s reasons are compelling and no proper basis for appellate intervention is shown. Where a judge has heard the evidence, accepted medical evidence of mental incapacity and made consequential directions in the protected person’s best interests, the Court of Appeal will not interfere absent an error of principle or wrongful exercise of discretion.

Dr S sought permission to appeal orders made by Mrs Justice Hogg in the High Court at Manchester. The judge had refused an adjournment and applications for disclosure, declared that Dr S’s mother lacked mental capacity, directed that she live with Dr S’s brother and restrained Dr S from attending the property. The application came before the Court of Appeal, but neither party attended. The issues were whether the applications should proceed in Dr S’s absence and whether there was any arguable basis for challenging the High Court’s discretionary and welfare-based decisions.

1. Non-attendance. The matter had been listed for hearing, but Dr S did not attend. Lord Justice Ward therefore struck out each application presently before the court because of her non-attendance. The applications were formally dismissed.
2. Refusal of an adjournment. The appeal against the first order challenged an exercise of discretion. No transcript of the High Court judge’s judgment had been provided. The Court of Appeal had only the reasons given when permission to appeal was refused. Those reasons appeared compelling, and there was no basis on which the court could interfere with the exercise of discretion.
3. Declaration and consequential directions. On the main appeal, the High Court judge had heard the evidence, although Dr S was absent. She was entitled to be satisfied by Dr Jeffreys’s medical evidence that Dr S’s mother lacked mental capacity. The consequential directions were made in the mother’s best interests. Lord Justice Ward could identify neither an error of principle nor a wrongful exercise of discretion. The appeal was accordingly hopeless and would have been dismissed in any event.

• Court of Appeal (Civil Division): On 18 March 2002, Lord Justice Ward struck out all applications because Dr S did not attend. The formal order was that the applications be dismissed: [2002] EWCA Civ 444.
• High Court of Justice, Manchester District Registry: Mrs Justice Hogg refused an adjournment and dismissed disclosure applications on 2 May 2000. On 3 May 2000 she declared that Dr S’s mother lacked mental capacity, directed that she live with Dr S’s brother and restrained Dr S from attending the property. No citation for the High Court orders is stated in the judgment.