Stenning v Home Office

Where substantial new grounds are sought shortly before an appeal, the court must balance the importance of allowing the issues to be properly argued against the respondent’s ability to answer them fairly. If justice requires the amendments but the respondent cannot respond adequately at short notice, the appropriate course is to adjourn the appeal. The party responsible for the late step may be ordered to pay the costs thrown away by the adjournment. Appellate parties should prepare their cases in good time, including decisions about the level of counsel to instruct.

The Home Office appealed from a decision of Mr Recorder Bullock in the Newcastle upon Tyne County Court on 4 April 2001. The Recorder had held the Home Office liable for an agreed sum of £12,000 in damages after a prisoner was held hostage, stabbed and later developed post-traumatic stress disorder. Shortly before the appeal, the Home Office sought to add substantial grounds challenging the pleading, evidence and standard of care applied. The claimant’s junior counsel had less than two days’ notice and no available leading counsel. The central issue was whether the amendments should be permitted and, if so, whether the appeal could fairly proceed immediately.

Lord Justice Brooke delivered the judgment, with Lord Justice Mance and Mr Justice Park agreeing. The appeal was adjourned.

1. Amendments to the grounds of appeal. The Home Office was entitled to raise the proposed amendments. They concerned important issues about the standards of care applicable to decisions concerning the location or release of prisoners, including the assessment and balancing of risks and benefits. Those issues required proper and full argument in the Court of Appeal.
2. Fairness to the respondent. It would nevertheless be unjust to require the claimant’s counsel to meet the expanded grounds at such short notice. The claimant’s representation arrangements and the unavailability of the leading counsel who had previously agreed to act pro bono made it unrealistic to expect an adequate response at once. Permission to amend therefore required an adjournment.
3. Costs. The adjournment was granted on condition that the Home Office pay the costs thrown away, including the costs of the hearing day.
4. Case management. The appellate procedure presupposes that parties prepare their appeals in good time and decide promptly what level of representation is required. A late decision to instruct leading counsel, followed by an expansion of the grounds, can disrupt the court’s administration and unfairly burden the opposing party.

The appeal was to be relisted promptly for one day, preferably before the same constitution if practicable. Order: adjourned as per judgment.

1. Court of Appeal (Civil Division): Allowed the Home Office to enlarge its grounds of appeal but adjourned the appeal because the claimant could not fairly respond at short notice. The Home Office was ordered to pay the costs thrown away.
2. Newcastle upon Tyne County Court: On 4 April 2001, Mr Recorder Bullock held the Home Office liable for £12,000 in damages.