Abiola v Daniel & Ors

When applications for permission to appeal are considered for reinstatement, the court may require an inter partes hearing so that both parties can address the prospects of success. A hearing should be deferred where one side is absent, the applicant has not had adequate opportunity to consider the respondent’s submissions, and assistance may be needed from the respondent. The likely prospect of success is a relevant consideration: there is no point in reinstating an application without a real prospect of success.

The claimant appealed from the High Court and had applications for permission to appeal before the Court of Appeal (Civil Division). The claimant was represented by counsel, but the respondents were absent, although their skeleton arguments were before the court. Lord Justice Mummery had to decide whether to reinstate the applications. The central procedural issue was whether that question should be determined at a hearing involving both sides, with submissions on the likely prospects of success.

1. Applications stood over. Lord Justice Mummery stood over the applications for permission to appeal for an inter partes hearing, with an estimate of one hour. He directed that, if possible, the hearing should be reserved to him because he had read the papers and understood the issues requiring decision.
2. Need for submissions from both sides. It was inappropriate to decide whether to reinstate the applications when only the claimant was represented. The claimant’s counsel had not had time to consider the respondents’ skeleton arguments. The court and counsel might also require assistance from the respondents’ counsel on points arising from those arguments.
3. Prospects of success. The court indicated that it would need submissions on the likely prospect of success on the proposed appeals. That prospect might bear on whether the applications should be reinstated, since there was no point in reinstating an application that lacked a real prospect of success.
4. No decision was made on reinstatement or on the merits of the proposed appeals. The applications were stood over for the inter partes hearing.

1. Court of Appeal (Civil Division): In [2005] EWCA Civ 1733, Lord Justice Mummery stood over the applications for permission to appeal and did not determine reinstatement or the merits.
2. High Court: The applications arose from proceedings in the High Court. The judgment gives no citation or further details of the decision under appeal.