Topping v Topping

An appellate court may determine an appeal in the appellant’s absence where the appellant knew of the hearing, raised no timely objection, and a late adjournment request does not justify further delay. In assessing an adjournment, the court may consider the request’s timing and explanation, the merits of the appeal, the respondent’s prejudice and the need for finality. A challenge that a judge failed to consider an affidavit or medical evidence will fail where the judgment shows that the material was considered. A committal order for non-payment is justified where the evidence supports findings that the debtor had the means to pay and had refused or neglected to do so.

Following the parties’ divorce, the appellant husband consented to capitalise the respondent wife’s periodical payments by paying a lump sum of £400,000. Nothing was paid. After earlier proceedings and a re-hearing, HHJ Raynor QC made a committal order on 4 June 2008 for 42 days or until payment of £442,816.74.

The husband appealed, alleging that the judgment summons had not been properly dealt with and that the judge had failed to consider his affidavit and medical evidence. Shortly before the appeal, he sought an adjournment because of an investigative cardiac procedure and did not attend the hearing. The central issues were whether the appeal should be adjourned or heard in his absence, and whether the committal order was justified.

Appeal dismissed. Lord Justice Tuckey gave the judgment, with Lord Justice Longmore agreeing.

1. The court extended time for the notice of appeal because the respondent did not object and the notice was filed within 21 days after service of the warrant. The appeal nevertheless remained live because there was no agreement about costs and the appellant’s withdrawal might have resulted from an inaccurate communication by the court office.
2. The adjournment was refused. The appellant knew the hearing date and knew by 19 August, at the latest, that the medical procedure was scheduled for 9 September, but did not raise the matter until the end of the preceding week. The procedure was investigative and could, on the information available, be postponed for a few days. The court also considered the earlier procedural history, the absence of merit in the appeal, the respondent’s hardship and the need to bring the matter to a final resolution. The appeal was therefore heard in the appellant’s absence.
3. The challenge to the 4 June hearing had no substance. HHJ Raynor had confirmed the hearing date, and the appellant’s own fax showed that he knew of it and had chosen not to attend because he was unwell. The judge had also considered the affidavit of 3 January 2008 and the medical reports. The absence of an express reference to the affidavit in the order did not demonstrate that it had been ignored.
4. The committal order was properly made. The judge was entitled to reject the appellant’s account concerning service, and the evidence of the appellant’s available assets, including substantial equity in the Marbella property, supported the conclusion that he had been able to meet the judgment sum but had refused or neglected to do so. The grounds of appeal had no prospect of success and were wholly without merit.

Order: appeal dismissed.

1. Court of Appeal (Civil Division): On 10 September 2008, the court extended time, refused an adjournment, heard the appeal in the appellant’s absence and dismissed the appeal. [2008] EWCA Civ 1142
2. Manchester County Court: HHJ Raynor QC made the committal order on 4 June 2008 for 42 days or until payment of £442,816.74. The order followed a re-hearing arranged after an earlier appeal concerning an order made by HHJ Appleby QC.