Tamina v Principal Hotels Ltd

In an application for permission to appeal out of time, the court considers both the explanation for delay and the merits of the proposed appeal. An inadequately explained delay will not be excused unless the proposed appeal has sufficient merit to outweigh it. A trial judge’s refusal of an adjournment is a discretionary decision which should not be disturbed absent a material error or improper exercise of discretion. An immaterial factual error in the reasons does not justify appellate intervention. Complaints about case-management failures require proof of breach and resulting injustice.

David Tamina brought a personal injury claim against his hotel employer, alleging that he drank a bleaching agent left in an orange-juice dispensing machine. The Recorder refused an adjournment, heard the liability evidence, rejected Mr Tamina’s account as inconsistent and implausible, and gave judgment for Principal Hotels Ltd with costs.

Mr Tamina filed his Appellant’s Notice outside the prescribed 14-day period and sought permission to appeal out of time. He alleged that the adjournment should have been granted, that the court failed to notify him of the hearing date, and that the defendant’s solicitors had failed to comply with case-management directions. The central questions were whether the delay should be excused and whether the proposed grounds of appeal had sufficient merit.

Lord Justice Peter Gibson refused the application. Although Mr Tamina had not provided a good explanation for filing late, the court considered the substance of the proposed appeal because sufficient merit might have outweighed the delay.

1. Adjournment. The Recorder had properly exercised his discretion. The proposed witnesses could not address the mechanics of what had happened in the hotel, and the application had not been foreshadowed by correspondence or other prior communication. The Recorder had given a reasoned decision. An inaccurate statement that Mr Tamina’s solicitors remained on the record until March 2000 did not affect the reasons for refusing the adjournment and was therefore immaterial. There was no real prospect of success on this ground.
2. Notification. The allegation that the county court failed to notify Mr Tamina of the February order was unsupported. Notices had been generated and sent to his updated address, none had been returned undelivered, and there was no evidence that he had been told the hearing would be merely a directions hearing. The court had not failed in its duty.
3. Trial bundle. The order required production of an indexed trial bundle for the court. It was not an order for disclosure or a requirement to serve the bundle on Mr Tamina. Disclosure and witness statements had already been dealt with while he was represented. In any event, no resulting injustice was shown.
4. Underlying claim. The Recorder was entitled to reject the uncorroborated and inconsistent account of how the liquid had been consumed, and to accept the evidence of the defendant’s witness. The proposed appeal was hopeless.

Order: Application refused.

1. Court of Appeal (Civil Division): On 24 May 2002, the court refused permission to appeal out of time.
2. Manchester County Court: On 22 June 2001, Mr Recorder Berkley QC refused an adjournment, heard the liability evidence, and gave judgment for Principal Hotels Ltd with costs.