Roberts v Roberts

On a second appeal, permission requires an important point of principle or practice, or a compelling reason. A serious procedural irregularity at the first appeal may provide that reason. A judge deciding permission may indicate a possible outcome to encourage settlement, but must keep the appeal open and hear it properly if permission is granted. Pre-judgment can make the later appeal a formality. Conversely, a first-instance judge may proceed in a party’s absence where the party’s written communication presents the case, includes supporting medical material, and does not seek an adjournment. The decision to adjourn remains a case-management discretion, and an appeal confined to that issue does not permit review of the substantive merits.

The Roberts, sellers of a hotel business and property, claimed sums said to remain due under their agreement with the Earleys, the purchasers. The Earleys counterclaimed for various set-offs and liabilities, including holiday pay, inventory items and costs connected with an employee’s claim.

District Judge Meredith proceeded on 9 September 2004 without Mr Roberts, who was abroad after heart surgery. He had sent a letter with medical reports and written arguments but had not applied for an adjournment. The judge entered judgment for the Earleys for £2,271.04 and £260 in court fees, and ordered an indemnity for future liability concerning the employee’s claim.

HHJ Overend granted permission to appeal and, after a five-minute hearing, ordered a rehearing, discharged charging orders and made consequential orders. The Court of Appeal had to decide whether that first appeal had been unfairly pre-judged and whether the district judge should nevertheless have adjourned the original hearing on her own initiative.

Lloyd LJ gave the leading judgment, with which Buxton LJ and Chadwick LJ agreed. The application for permission to bring the second appeal was granted and the appeal was allowed.

1. Second appeal. Permission is available only where an important point of principle or practice is involved or there is a compelling reason for the appeal to be heard. Truly exceptional circumstances are required. A serious procedural irregularity affecting the fairness of the first appeal may constitute a compelling reason. The principle in Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60 applied.
2. Pre-judgment at permission stage. A judge may indicate a possible or likely outcome at a preliminary stage to encourage settlement. The judge must, however, make clear that the appeal remains open, hear argument at the substantive hearing and decide the result only then. Judge Overend had unequivocally decided at the permission stage that a rehearing would be ordered and then allowed only five minutes for the appeal. The later hearing was therefore a formality and the appellant was denied a proper hearing. That was a serious irregularity.
3. Original hearing. On reconsidering the appeal that Judge Overend should have heard, the Court of Appeal held that District Judge Meredith acted within her discretion by proceeding. Mr Roberts’ letter presented arguments on both the claim and counterclaim, included medical material, did not seek an adjournment and gave no indication when he might be able to attend. The uneven presentation of evidence did not require the judge to take the initiative and adjourn.
4. Scope and orders. The appeal was concerned only with whether an adjournment should have been granted, not with the substantive correctness of District Judge Meredith’s findings. Judge Overend’s order of 26 May 2005 was set aside. The appeal from District Judge Meredith’s order of 9 September 2004 was dismissed, and that order was reinstated. Any further issue concerning the charging orders was left to a separate application if the parties could not agree.

1. Court of Appeal (Civil Division): permission to appeal granted; appeal allowed; HHJ Overend’s order of 26 May 2005 set aside; appeal from District Judge Meredith’s order dismissed.
2. Torquay and Newton Abbot County Court, HHJ Overend: appeal from District Judge Meredith allowed and matter remitted for rehearing on 26 May 2005.
3. Torquay and Newton Abbot County Court, District Judge Meredith: judgment entered for the Earleys on 9 September 2004 after proceeding in Mr Roberts’ absence.