Brindle v Palmer

Where an appellate hearing has been determined in the absence of a litigant because material evidence supporting an adjournment request was not communicated to the judge, the resulting order is procedurally flawed. The litigant is entitled to have that appeal reheard. The proper remedy is ordinarily to set aside the flawed order and relist the original appeal before another judge of the same division. A second appeal is not justified merely because the first appeal was mishandled, particularly where no important point of principle or other compelling reason is shown. The rehearing may nevertheless provide no practical benefit if the underlying decision appears inevitable.

The appellant, acting in person, challenged a costs order made by a district registrar after she failed to issue a claim under section 50 of the Administration of Justice Act 1985 within the directed period. Her first appeal was adjourned and later dismissed by Bennett J on 9 March 2007 when she did not attend. The judge had not received her email seeking an adjournment after a road accident or the supporting medical evidence. She sought a further appeal, but permission was initially refused on paper under section 55 of the Access to Justice Act 1999. At the oral hearing the central issue was the effect of the administrative failure on the first appeal and the appropriate procedural remedy.

Application granted. Lord Justice Thorpe accepted that the failure of court administration to place the appellant’s email and medical certificate before Bennett J constituted a flaw in the judgment, for which the judge himself was not responsible.

1. The appellant was entitled to a rehearing of her first appeal because she had been prevented by that procedural failure from having her request for an adjournment properly considered.
2. The entitlement was practically limited. The district registrar’s order appeared inevitable because the appellant had not issued the claim directed under section 50 of the Administration of Justice Act 1985 by the specified date, and her explanation suggested that she had chosen not to pursue the challenge.
3. The proper course was not a second appeal in the Court of Appeal. If a procedural flaw justified setting aside the Family Division order, the first appeal should be relisted before another judge of that division. The Court of Appeal had no demonstrated need to determine a second appeal.
4. Although permission for a second appeal had initially been refused under section 55 of the Access to Justice Act 1999, the oral application was adjourned for a further hearing on notice to the executors. The judgment was sent to them with an invitation to consent to an order nisi setting aside the order of 9 March 2007, granting permission in the first appeal, and directing its rehearing before another Family Division judge.

• Principal Registry of the Family Division: A district registrar directed the appellant to issue a claim under section 50 of the Administration of Justice Act 1985 by 30 September 2006. When she did not do so, the registrar ordered her to pay the executors’ costs.
• High Court, Family Division: Bennett J dismissed the first appeal on 9 March 2007 in the appellant’s absence. The court had not received her adjournment request or medical evidence.
• Court of Appeal (Civil Division): Paper permission for a second appeal was refused under section 55 of the Access to Justice Act 1999. On the oral hearing, the application was granted in the sense stated in the judgment, with the first appeal to be reheard if the proposed order was consented to or otherwise directed.