Johnson v Johnson

Permission to appeal should be refused under the Access to Justice Act 1999, section 55, where the proposed appeal raises no important point of principle or practice and no other compelling reason. A litigant who fails to participate in interlocutory stages, does not attend the trial, and assumes an adjournment has been granted without clear notice takes the risk that the case will proceed in their absence. Minor errors in calculating delay do not justify permission where they could not have affected the decision. A careful financial determination within the permissible range provides no sufficient basis for appellate intervention.

The appeal arose from ancillary relief proceedings in the county court. The husband failed to attend hearings, including the final hearing, and the district judge proceeded in his absence before making a clean-break order. The husband’s notice of appeal was out of time. Her Honour Judge Bush refused an extension and stated that the appeal would also fail on its merits. Black LJ granted an on-notice hearing, although the district judge’s judgment was not then available. The Court of Appeal considered whether permission should be granted in light of the procedural history, the alleged failure to provide documents, and the merits of the financial order.

1. Permission threshold. Lord Justice Thorpe delivered the principal judgment, with Mr Justice Coleridge agreeing. The application for permission was refused. The proposed appeal did not clear the high threshold in section 55 of the Access to Justice Act 1999: it raised no important point of principle or practice and disclosed no other compelling reason.
2. Failure to participate. A litigant must treat a listed hearing as effective unless the court clearly confirms that it has been adjourned or will not proceed. A litigant who ignores interlocutory stages, communicates informally rather than issuing proper applications, and fails to attend a trial takes substantial risks. The trial judge was entitled to proceed in the husband’s absence after reviewing the history and nevertheless produced a careful judgment.
3. Alleged procedural errors. The complaint that the trial bundle contained material not previously available to the husband was unsupported. The bundle merely organised the core documents already involved in the proceedings. The circuit judge’s calculation of the period of default was inaccurate, but the difference was immaterial and could not have affected her conclusion on extension of time.
4. Merits. The Court of Appeal found no basis for criticism of the financial order. Having regard particularly to the wife’s continuing financial responsibility for the children, the outcome fell within the range of fair results available to the district judge. The application was formally refused.

• Court of Appeal (Civil Division): On 17 November 2010, the application for permission to appeal was refused: [2010] EWCA Civ 1486.
• Worcester County Court: Her Honour Judge Bush refused an extension of time and stated that the appeal would in any event fail on its merits.
• County court: The district judge proceeded in the husband’s absence and made a clean-break ancillary relief order.