Mahajan v Waldman & Ors

Appellate case-management requirements must be complied with. A litigant cannot decide unilaterally which documents requested by the court are relevant. Failure to file the required bundle may justify an unless order and dismissal of an application for permission to appeal. The court may still extend time where the merits warrant it. A transcript is unnecessary where the legal issues can be decided on the existing material. An appellate court will not interfere with a discretionary procedural decision unless it falls outside the discretion’s wide ambit. An application for permission to appeal cannot be transferred to the Court of Appeal before permission has been granted. The court had no jurisdiction to order the Court Service to pay costs or damages on the bases advanced.

The proceedings arose from a long-running Chancery Division action in which Mr Mahajan alleged fraud and conspiracy against the respondents. Deputy Master Lloyd struck out the action, and Patten J later dealt with applications concerning the proposed appeal, including requests for transcripts, information from the court manager and transfer to the Court of Appeal.

Deputy Master Joseph ordered that Mr Mahajan’s application for permission to appeal against Patten J’s order would stand dismissed unless he filed a compliant bundle. Rimer J reviewed that order under CPR 52.16(5), adjourned the permission hearing and declined to order costs or damages against the Court Service. The central issues were whether those procedural decisions should be disturbed and whether time should be extended.

The Court of Appeal unanimously dismissed the appeal against Deputy Master Joseph’s order and the application for permission to appeal against Rimer J’s order. It refused to extend time for compliance.

1. The Civil Appeals Office was entitled to require an indexed and paginated bundle containing the relevant documents required by the Practice Direction to Part 52 of the Civil Procedure Rules 1998. A litigant cannot determine unilaterally that a document requested by the court is irrelevant. Failure to comply properly justified listing the matter for dismissal and making the unless order.
2. Although the court could in principle extend time, the documents had since been filed and the court considered the proposed appeal on its merits. The underlying issues could be determined on the existing material. There was no substance in the proposed challenges and no reason to extend time.
3. Patten J was entitled to refuse a transcript of the hearing before Deputy Master Lloyd. The proposed appeal raised legal issues which did not require a transcript. A discretionary refusal of that kind would not be disturbed unless the discretion had been exercised outside its wide ambit. A transcript might be relevant only if a serious procedural irregularity requiring investigation were properly raised.
4. Queries directed to the court manager about the circumstances in which the Deputy Master sat were irrelevant to the merits and there was no procedure in the CPR for such interrogation. An application for permission to appeal could not be transferred to the Court of Appeal. The distinction was between an appeal, which could be transferred, and an application for permission, which could be transferred only after permission had been granted. Section 57 of the Access to Justice Act gave the Master of the Rolls no wider power.
5. Rimer J was entitled to direct that the permission application be handled in the ordinary way. He had no jurisdiction to order the Court Service to pay costs or to award damages against a court clerk on the grounds advanced, and the material disclosed no proper basis for such relief.

The court also observed that a court of justice may regulate its own procedures.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 1897, the court dismissed the appeal against Deputy Master Joseph’s unless order and the application for permission to appeal against Rimer J’s order. It declined to extend time for compliance.
2. Chancery Division: Deputy Master Lloyd struck out the fraud and conspiracy action. Patten J dismissed related procedural applications and refused to transfer the permission application. Deputy Master Joseph made the unless order on 16 July 2003. Rimer J reviewed that order, adjourned the permission hearing and declined to order costs or damages against the Court Service.