Newport City Council v Charles

When deciding whether to vacate an appellate hearing date, the court must assess the overall justice of the case. Relevant considerations include the availability of suitable alternative counsel, urgency, likely costs, prejudice, and the public interest in local appeals being heard on circuit. The absence of preferred leading counsel, even counsel with particular expertise, will not ordinarily justify an adjournment where effective alternative representation is available. Practical difficulties in arranging circuit hearings may support retaining the listed date, although countervailing considerations may prevail in an appropriate case.

This was an interlocutory application in a second appeal concerning possession proceedings and the security of tenure of council tenants. Permission to appeal had been granted by Pill LJ on 23 May 2008. The appellant sought to vacate a hearing listed in Cardiff because leading counsel of his choice was unavailable. The application relied on counsel’s existing involvement, specialist housing expertise, public funding and possible additional cost. The application was opposed on grounds of urgency and increased costs from delay.

1. Application refused. Laws LJ held that an application to vacate a hearing date should be determined by the general justice of the case, taking account of all relevant circumstances.
2. The availability of suitable alternative leading counsel was material. There was no suggestion that counsel capable of conducting the appeal properly and effectively could not be instructed for the listed date. The preferred counsel’s expertise and prior involvement therefore did not, without more, require an adjournment.
3. The case for urgency was uncontradicted. Laws LJ was also sceptical that instructing new counsel would necessarily impose a greater burden on public funds than an adjournment, particularly where delay was likely to increase costs.
4. The court recognised the force of the complaint that counsel’s availability had not been checked in the same way as under the usual London practice. That administrative difficulty was insufficient to displace the justice of retaining the Cardiff date. The court also identified a public interest in sitting locally to resolve local appeals, together with the limited windows available for circuit sittings.
5. Richards LJ agreed. The order was: application refused.

• Court of Appeal (Civil Division): In a second appeal for which permission had been granted by Pill LJ on 23 May 2008, the court refused the application to vacate the Cardiff hearing date. The substantive appeal was not determined in this judgment: [2008] EWCA Civ 893.
• Cardiff Civil Justice Centre: The appeal arose from proceedings before His Honour Judge M Jarman QC. No citation for that decision is stated in the judgment.