Property Investors Courses Ltd & Anor v Secretary of State for Trade & Industry

An appeal dismissed in a party’s absence will not ordinarily be reopened where the absence resulted from the party’s own failure to arrange representation and the explanation for that failure is inadequate. The court may consider the party’s conduct, the availability of earlier opportunities to obtain assistance, any previous adjournment, and the delay before seeking relief. A party who plans to be unavailable for medical treatment while an appeal is pending should make timely arrangements to protect their position. Failure to do so may make non-attendance self-induced and provide no good basis for reopening the appeal.

Miss Marcela Frolikova applied to reopen and reinstate an appeal against an order made by Mr John Jarvis QC, sitting as a deputy judge of the Chancery Division. The appeal had been dismissed by the Court of Appeal on 14 July 2008 in her absence, after repeated requests for adjournment and failures to provide the explanations sought by the court and the respondent. She had been permitted to apply to set aside the order by 21 August 2008 and supplied a witness statement and correspondence from her former solicitors. The central issue was whether her failure to attend or secure representation was adequately explained so as to justify reopening the appeal.

1. The application to reopen and reinstate the appeal was refused. The applicant had not provided an adequate explanation for failing to obtain legal representation well before the fixed hearing date.
2. In exercising the discretion to reopen an appeal dismissed in a party’s absence, the court may consider whether the absence was the party’s own fault, whether there is a good explanation for the failure to attend or obtain representation, and whether reopening is sought only after substantial time has elapsed. A previous adjournment granted to accommodate the party’s circumstances does not justify indefinite further delay.
3. The applicant knew that the appeal was listed for 14 July and had already obtained an adjournment to accommodate the obtaining of transcripts and planned medical treatment. She could have instructed solicitors before travelling to Prague and should have made arrangements for representation or assistance, including contingency arrangements if she could not return. Her failure to do so left her in a precarious position and made her non-representation her own fault.
4. The court accepted that the applicant was not obliged to waive privilege or disclose communications with solicitors. Nevertheless, where she declined to explain why her solicitors had ceased acting, the court was entitled to draw inferences from the absence of an explanation. The inconsistent explanations advanced did not assist her, although the application was refused independently on the basis that the failure to obtain representation was wholly inadequately explained.
5. The final order was: application refused.

• Court of Appeal (Civil Division): The applicant’s earlier appeal was dismissed on 14 July 2008 in her absence. The court permitted an application to set aside the order by 21 August 2008; the earlier judgment is identified as [2008] EWCA Civ 872.
• High Court of Justice, Chancery Division: Mr John Jarvis QC, sitting as a deputy judge, made the order challenged in the earlier appeal after an adjourned hearing.
• Court of Appeal (Civil Division): The present application to reopen and reinstate the appeal was refused.