Cook v Bates & Anor

An appeal is not a rehearing of the evidence. New evidence or materials will be admitted only in exceptional circumstances. A party is not entitled as of right to legal representation, and lack of pro bono representation does not ordinarily justify an adjournment where the party has had adequate notice and time to prepare. The court may refuse an adjournment and dismiss an appeal when the appellant fails to attend, the grounds for postponement are inadequate, the litigation has already been delayed, and further delay would cause serious prejudice to the respondent.

The defendants appealed from a decision of Mr Recorder Bullock in the Middlesbrough County Court. The appeal had been delayed, permission having been sought out of time and granted only in exceptional circumstances. The first appellant, who had health difficulties and had been unable to secure pro bono representation, sought an adjournment by email shortly before the hearing. He did not attend the arranged video-conference hearing.

The proposed adjournment was said to be needed to obtain legal assistance and detailed plans. The court considered whether those matters justified postponing the appeal, having regard to the history of delay, the preparation time available, and the prejudice to the respondent.

1. Appeal dismissed. The court was entitled to determine the matter despite the first appellant’s absence. The request for an adjournment did not justify further delay. The hearing had been rearranged by video conference for his convenience, the appellants had had sufficient time to prepare, and the reasons advanced shortly before the hearing were inadequate.
2. An appeal is not a rehearing of all the evidence. New evidence is admitted only in exceptional circumstances. The proposed scale plan was not essential, particularly as the judge granting permission had merely said that an agreed plan would be helpful. An allegation that the plan attached to an earlier transfer had been falsified had not been pursued at trial and formed no part of the recorder’s judgment.
3. A party is not entitled as of right to legal representation. The first appellant had known since November that pro bono representation had not been secured. That circumstance did not justify an adjournment when there had been ample time to prepare the appeal.
4. The court took account of repeated procedural delay, including the late application for permission to appeal, a previous non-attendance, and the prejudice caused to the respondent by being unable to sell her property. Mr Justice Munby agreed with the reasons given by Lady Justice Arden and emphasised that the further delay sought was unjustified.
5. The appeal was dismissed. The transcript was to be supplied to the first appellant at public expense. The appellant was ordered to pay the respondent’s costs, summarily assessed at £2,750 plus VAT for solicitors’ costs and £1,000 plus VAT for counsel’s fees, within 21 days.

• Court of Appeal (Civil Division): Cook v Bates & Anor, [2005] EWCA Civ 205. The appeal from the Middlesbrough County Court was dismissed. Permission to appeal had previously been granted by Jonathan Parker LJ in exceptional circumstances after a late application.
• Middlesbrough County Court: The judgment of Mr Recorder Bullock was the decision under appeal. No citation for that judgment was stated.