Bhojani & Ors v Harris & Ors

Where substantial fresh evidence may materially affect pending applications and an appeal, the trial judge should ordinarily gather and determine that evidence before the appeal proceeds. The court must balance the parties’ need for a fair opportunity to prepare against the interests of justice, proportionality and the proper use of appellate resources. The trial judge may therefore adjourn or relist applications so that they are heard before the appeal, even where the resulting timetable is imperfect. A general adjournment until after the appeal should be refused where it risks the appeal proceeding on an erroneous or incomplete evidential basis.

The claim arose from complex property litigation involving several groups of parties. Following judgment, applications were made concerning the setting aside of a default judgment, alleged abuse of process, tracing and enforcement. A forthcoming appeal by five family-member claimants was listed for December 2005.

New evidence from Ramila Bhojani was potentially relevant to those applications and might also affect the appeal. The claimants sought an adjournment of the applications until after the appeal, or until January 2006. The issue was whether the applications should be heard before the appeal despite incomplete reply evidence.

1. The claimants’ application was allowed only to a limited extent. The hearings fixed for 4, 14 and 15 November 2005 were relisted for 15 and 16 November, with 4 November retained for a pre-trial review and directions hearing. The applications for a general adjournment until after the appeal, or until January 2006, were dismissed.
2. The evidence concerning Ramila’s alleged lack of involvement in the transactions and proceedings was potentially significant. If accepted, it could affect her application to set aside the judgment, the proposed abuse of process application, tracing and enforcement applications, and the factual basis of the pending appeal. No view was expressed on the truth of that evidence.
3. It was in the interests of justice and proportionate for the evidence to be gathered and considered by the trial judge before any application was made to the Court of Appeal to admit it as fresh evidence. The evidence would require numerous witnesses, documentary investigation and extensive cross-examination. It would be disproportionate for the Court of Appeal to conduct that evidential exercise itself.
4. The court had to balance two undesirable alternatives: hearing the applications before the parties were fully ready, or allowing the appeal to proceed without evidence and findings that might demonstrate that it was being heard on an erroneous basis. The former was the lesser injustice.
5. The judge stated that the trial judge had a duty to gather the evidence for the Court of Appeal and that the outstanding applications should be resolved before the appeal. Permission to appeal the procedural order was granted. Any challenge was to be brought by appeal to the full court, rather than by an application for procedural directions before a single Lord Justice.

The judgment concerned applications made in advance of a forthcoming Court of Appeal hearing listed for 6 and 7 December 2005. No decision of the Court of Appeal on that appeal was stated in the judgment.