Howard v Stanton

A respondent given notice of a hearing of an application for permission to appeal is not ordinarily required to attend unless the court requests attendance. The court should not determine the substantive appeal immediately after granting permission in that respondent’s absence unless the respondent was given proper notice that this would occur.

Doing so is a serious procedural irregularity where it deprives the respondent of an opportunity to argue the appeal. Where the grant of permission itself is unchallenged, the appropriate remedy is ordinarily to set aside the merits decision and remit the appeal for a fresh determination, rather than restore the first-instance order.

The tenant paid a deposit under a residential tenancy. At its end, she sought the balance after the final month’s rent was set off. The landlord counterclaimed for alleged damage and loss of rent. District Judge Batcup gave judgment for the tenant for £1,000 and dismissed the counterclaim.

The landlord sought permission to appeal. HHJ Reid QC granted permission at a hearing notified as a permission hearing. Although the tenant neither attended nor was represented, the judge then heard and allowed the substantive appeal. The tenant appealed to the Court of Appeal.

The central issue was whether it was procedurally fair to determine the merits of the landlord’s appeal in the tenant’s absence.

1. Appeal allowed. The court set aside the part of HHJ Reid QC’s order which had allowed the landlord’s appeal and remitted that appeal for fresh determination by a circuit judge.
2. Under paragraph 4.15 of the practice direction accompanying the Civil Procedure Rules Part 52, a respondent receives notice of a permission hearing but need not attend unless the court requests attendance. No such request had been made. The tenant’s absence therefore did not amount to fault on her part.
3. The usual purpose of the separate permission stage is to filter out hopeless appeals. Where permission is granted, the usual practice is to hear the appeal on another day. A court may order that the appeal follow immediately upon a grant of permission, but no such order had been made here.
4. Accordingly, hearing and allowing the substantive appeal in the tenant’s absence was a serious procedural irregularity which caused injustice. She had been denied any opportunity to argue her case. The judge had also failed to explain the asserted legal error in the district judge’s decision and appeared to make adverse findings on matters not pleaded.
5. The irregularity affected the determination on the merits, not the grant of permission. It would therefore be unfair to deprive the landlord of the appeal authorised by that grant. The proper course was a remittal, not restoration of the district judge’s order. The court did not decide whether Rule 39.3(3) of the Civil Procedure Rules applied to an appeal, or whether the county court could instead have set aside its order under its general case-management powers.

1. Court of Appeal (Civil Division) — allowed the tenant’s appeal in [2011] EWCA Civ 1481, set aside the order allowing the landlord’s appeal, and remitted that appeal to a circuit judge.
2. Staines County Court (HHJ Reid QC) — on 20 July 2010 granted the landlord permission to appeal and, at the same hearing, allowed the appeal in the tenant’s absence.
3. Staines County Court (District Judge Batcup) — gave judgment for the tenant for £1,000, representing the balance of the deposit, and dismissed the landlord’s counterclaim.