Royds LLP v Pine (Rev 1)

Where a litigant is entitled to an oral hearing of a renewed application but cannot attend for good reason, the court may dispense with the hearing and determine the application on the papers. It may seek written clarification before deciding it. A practice direction requiring a hearing does not remove that case-management power.

That power does not automatically extend to denying other parties a hearing to which they are entitled and which they insist upon. The court must assess the disabled litigant’s difficulties and adopt appropriate measures to ensure fair treatment.

Miss Pine appealed against directions made by Edwards-Stuart J concerning her appeal and renewed application for permission to appeal against Master Leslie’s order in proceedings arising from a dispute about legal fees and related negligence claims.

Medical evidence indicated that chronic fatigue syndrome prevented Miss Pine from reliably attending hearings or processing information in real time. The judge directed that her renewed application would be refused unless made orally through counsel. Permission to appeal against that direction was granted. The central issue was whether the directions were impermissibly rigid and whether the renewed application could instead be determined on the papers.

1. Appeal allowed in part. The directions were varied so that, if Miss Pine could not secure representation or attend in person, her renewed application for permission to appeal on the additional grounds could be determined on the papers.
2. A renewed application for permission to appeal is ordinarily made by way of an oral hearing under Practice Direction 52B, para 7.2. That requirement does not prevent the court, in an appropriate case, from dispensing with the hearing and giving a written decision, or from proceeding with a hearing and deciding the matter in the applicant’s absence.
3. It may be useful for a different judge to consider the papers again, particularly where the application has not been certified as totally without merit and the applicant is entitled to a hearing but cannot attend for good reason. The court may seek written clarifications before reaching its decision.
4. The respondents’ entitlement to a hearing could not properly be removed merely because Miss Pine was unable to attend or obtain representation. The judge dealing with the High Court appeal should assess the extent of her difficulties and consider how she could be treated fairly. The judge could use her written material, prevent new points being raised without an opportunity to respond, adjourn if necessary, and consider representation by her fiancé.
5. There was no inherent procedural unfairness in the appeal proceeding without Miss Pine’s attendance or representation where the court considered her written material and ensured that her absence did not cause unfair prejudice. The application for a stay and permission to appeal to the Supreme Court were refused.

• Court of Appeal (Civil Division) — [2012] EWCA Civ 1734: allowed the appeal to the extent set out in the judgment and varied Edwards-Stuart J’s directions.
• High Court, Queen’s Bench Division — Edwards-Stuart J, 9 January 2012: directed that the renewed application for permission to appeal would proceed orally through counsel, failing which it would be refused.
• High Court — Master Leslie, 4 July 2011: granted summary judgment for Royds LLP, entered judgment against Miss Pine on her counterclaim and additional claims, struck those claims out, and ordered her to pay the costs.