Home From Home Ltd. v Home

An appellate court may refuse an adjournment where the appeal has no reasonable prospect of success. The assessment includes whether proposed fresh evidence could realistically improve the appellant’s position. Evidence of material conversations omitted from the pleadings, witness statement and trial evidence presents formidable difficulties under the rule in Ladd v Marshall. Where those difficulties leave no viable appeal, granting an adjournment is a wrong exercise of discretion, even where the underlying dispute is financially significant.

The appellant occupied a flat under a sublease derived from a head lessee whose lease had been forfeited for rent arrears. The Recorder accepted her account but refused relief from forfeiture because she could not pay rent for at least six months and had no assured means of resuming payments.

She appealed and later sought to rely on alleged direct conversations with the head landlords which had not been raised at trial. Jack J adjourned the appeal on condition that she pay £5,000 into court as security for costs, with dismissal in default. The issue before the Court of Appeal was whether the adjournment should have been granted and whether the appeal had a realistic prospect of success.

Appeal dismissed. The Court of Appeal unanimously held that Jack J was entitled to conclude that the appeal had no merit and no reasonable prospect of success. In those circumstances, granting an adjournment was a wrong exercise of discretion.

1. The underlying application concerned relief from forfeiture. The court recorded that the relevant statutory power arose under sections 138(9A) to (9C) of the County Courts Act 1984. It did not determine the scope of that statutory scheme or the appellant’s substantive entitlement to relief.
2. The appellant sought to rely on conversations which she alleged had taken place with the claimants’ representatives. Those conversations had not been mentioned in her defence, witness statement or oral evidence at trial. The proposed fresh evidence faced formidable difficulties under the principles in Ladd v Marshall. It therefore could not reasonably be expected to improve the appeal’s prospects.
3. The Recorder had accepted the appellant’s evidence but found that she had no funds to pay rent for at least six months and no certainty of being able to resume payment. The Court of Appeal considered that no possible criticism could be made of that decision on the material properly before the court.
4. The court preferred to determine the matter on the respondents’ notice. It was unnecessary to decide the separate argument, based on MV Yorke Motors (a firm) v Edwards, [1982] 1 WLR 444, concerning the £5,000 security condition. Lady Justice Smith and Lord Justice Wall agreed with Lord Justice Brooke. The order was: appeal dismissed.

1. Court of Appeal (Civil Division): On 5 July 2006, dismissed the appeal on the respondents’ notice because it had no reasonable prospect of success.
2. Queen’s Bench Division, Mr Justice Jack: On 1 December 2005, adjourned the appeal from the Recorder’s order on condition that £5,000 be paid into court as security for costs, with dismissal in default.
3. Queen’s Bench Division, Openshaw J: On 13 October 2005, granted permission to appeal from the Recorder’s decision.
4. Central London County Court, Mr Recorder Hampton: On 14 June 2004, dismissed the application for relief from forfeiture because the appellant could not pay rent for at least six months and had no assured means of doing so thereafter.