Knowles v Knowles

An appellate court should ordinarily review, rather than rehear, a discretionary case-management decision, although it may consider admitted fresh evidence. It will intervene only for an error of principle or a decision that is plainly wrong, including failure to consider relevant material. A litigant in person’s disadvantage, or serious mental disability, does not by itself justify setting aside an order. The decisive question is whether evidence shows that the disability prevented compliance with clear procedural obligations. Where a party fails to comply with a consent order and an unless order, strike-out and possession orders may be upheld where the judge properly weighs relief, delay, prejudice and the need for finality.

These appeals arose from two orders made by HHJ Hodge QC in Manchester Crown Court in possession proceedings between a brother and sister concerning their late mother’s property. The first order, made in the appellant’s absence, struck out his defence and counterclaim for non-compliance with a consent order and an unless order, ordered possession and awarded costs. The second refused to set aside or suspend that order. The appellant, who was unrepresented and seriously mentally disabled, relied on medical evidence and argued that the judge had failed to take proper account of his condition. The Court of Appeal considered whether the orders were vitiated and whether the fresh evidence required a rehearing.

Appeal dismissed. Mummery LJ gave the principal judgment. Dyson LJ and Maurice Kay LJ agreed.

1. The court admitted and considered fresh medical evidence. Dyson LJ preferred to approach the matter as a review under CPR 52.11(1), rather than a complete de novo rehearing. The interests of justice were sufficiently met by reviewing the decisions while taking account of the fresh evidence.
2. Lack of legal representation cannot, in itself, justify setting aside an order. The court must take account of the disadvantages faced by a litigant in person when managing the case. Serious mental disability likewise requires evidence connecting the disability to the alleged procedural default. The evidence showed substantial disability, but did not show that it prevented the appellant from consenting to, or complying with, the relevant orders.
3. The first-instance judge was aware of the appellant’s difficulties and had considered the evidence available to him. His discretion could be challenged only for an error of principle or because the decision was plainly wrong, including through omission of relevant material or consideration of irrelevant material. No such error was established.
4. The consent order and subsequent unless order were clear. The appellant failed to comply with obligations concerning payment information, further information and disclosure. The judge was entitled to strike out the defence and counterclaim and order possession. In considering relief under CPR 3.9, he was entitled to weigh the repeated defaults, substantial unexplained delay, additional cost, prejudice to the claimant and the need to bring the litigation to an end.
5. The court did not need to determine the point concerning CPR Part 21 and protected persons. Maurice Kay LJ added that the latitude appropriate to a litigant in person with serious health problems has limits where it becomes unfair, prejudicial and over-expensive for the opposing party.

The orders of 24 July 2006 and 11 May 2007 were upheld.

• Manchester Crown Court: HHJ Hodge QC struck out the defence and counterclaim and ordered possession on 24 July 2006. On 11 May 2007 he refused to set aside or suspend that order.
• Court of Appeal (Civil Division): On [2008] EWCA Civ 788, the appeal was dismissed.