Steinberg v Englefield & Anor

An appellate court may proceed in a party’s absence where the party has had a fair opportunity to present the case and an adjournment would cause unacceptable delay or prejudice. A medical condition does not confer an indefeasible right to conduct litigation personally or to obtain an indefinite adjournment, particularly where representation remains possible and the court has full written submissions. A judgment should be reopened only where the omitted material might realistically have produced a different result. The court must balance fairness to the absent party against the interests of other parties and the public interest in finality.

The appellant sought to set aside the Court of Appeal’s earlier dismissal of his appeal from summary judgment in a libel action. The earlier appeal had been heard in his absence. A psychiatric report, received by the Civil Appeals Office but not placed before the court, stated that he was then unable to return to court for six to eight months.

He argued that the judgment should be reopened because proceeding in his absence was unjust and because the report might have led to an adjournment. He also relied on proposed arguments concerning publication, abuse of process, access to court under Article 6, and public funding. The appeal originated from Eady J’s summary judgment decision in the Queen’s Bench Division: [2003] EWHC 1461 (QB). The central issue was whether the omitted report or the new arguments created a sufficient basis to set aside the judgment.

1. Application refused. Sedley LJ, giving the principal judgment, declined to set aside the Court of Appeal’s judgment dismissing the substantive appeal. Ward LJ and Longmore LJ agreed.
2. A litigant is entitled to a fair opportunity to present the case, but has no indefeasible right to present it personally where proceeding in the party’s absence is justified by the delay and prejudice that an adjournment would cause. Even if the psychiatric report had been before the court, it offered no prospect of the appellant conducting his own case or securing representation within a reasonable period. The court could therefore proceed, having regard to the full written submissions already available, the interests of the respondents and the public interest in finality.
3. Assuming that the report might have justified an adjournment, reopening still required consideration of whether the proposed grounds of appeal had any realistic prospect of success. The appellant’s new assertions about the absence or limited extent of publication were unsupported by evidence and did not materially alter the position considered by Eady J. The judge had declined both to infer widespread publication and to accept, without rebutting evidence, that publication was negligible or merely factitious.
4. The proposed reliance on Jameel v Dow Jones disclosed no new basis for reopening. The public-funding issue was collateral to the merits and had been pursued elsewhere. The application was accordingly refused, and the earlier judgment remained in force.
5. On the separate stay application, Ward LJ applied Civil Procedure Rules 1998, CPR 52.7. An appeal does not operate as a stay. Refusal of a stay would not stifle the application to set aside, and the balance of injustice favoured allowing enforcement to continue. Enforcement was lawful, necessary for protection of the respondents and proportionate, so it did not unlawfully interfere with Article 8 rights.

1. Court of Appeal (Civil Division)—The application to set aside the earlier appellate judgment was refused, and the stay application was refused: [2005] EWCA Civ 824.
2. Court of Appeal (Civil Division)—The substantive appeal was dismissed on 3 March 2005: [2005] EWCA Civ 288.
3. Court of Appeal (Civil Division)—An application for an extension of time had previously succeeded: [2005] EWCA Civ 13.
4. Queen’s Bench Division—Eady J granted the claimants summary judgment in the libel action: [2003] EWHC 1461 (QB).