Queen Mary University of London v Osonnaya

An appeal may be struck out where its prosecution has involved inordinate and inexcusable delay, particularly where the appellate route has remained available and no adequate explanation is provided. A party seeking an adjournment on medical grounds must provide sufficient evidence of an inability to conduct the hearing. The judge is entitled to scrutinise the medical evidence and surrounding circumstances, including whether the application is bona fide. Where the first-instance judge has fairly considered the relevant matters and reached a conclusion supported by the evidence, a further appeal cannot be used to obtain a second opportunity to advance the same case or to remedy a mere sense of injustice.

The appellant had been employed by the respondent from 1999 until her employment was terminated in 2007. The respondent subsequently brought county court proceedings against her and the International Academy of Educational Services concerning unpaid sums and alleged fraud. A default judgment was entered in 2008, damages were assessed in 2010, and the appellant’s challenges to the judgment continued through several stages.

Her appeal to the High Court was struck out by MacDuff J in March 2011 after procedural delay. Kenneth Parker J dismissed her application to set that order aside on 28 June 2011. The appeal to the Court of Appeal concerned, principally, whether she had been medically unable to conduct the hearing, whether the High Court judge had been misled about an earlier hearing, and whether the appeal should have been allowed to proceed despite the delay.

1. Appeal dismissed. The Court of Appeal upheld Kenneth Parker J’s decision to dismiss the application and to strike out the appellant’s appeal.
2. The High Court judge was entitled to investigate closely whether the appellant was medically fit to conduct the hearing. The medical evidence did not establish that she was unable to proceed. His inquiry was careful and fair, and he was entitled to conclude that there were no proper grounds for an adjournment. The presence of the appellant’s husband, who declined to assist despite having assisted at earlier hearings, was also a matter which the judge could take into account when assessing the position.
3. The judge had considered the matters raised about the earlier hearing before Beatson J. The suggestion that he had been misled, advanced before Elias LJ, was unfounded when the transcript of that hearing was examined.
4. The appeal had been prosecuted with inordinate and inexcusable delay. Given the age of the default judgment and the availability of appellate procedures, the judge was entitled to regard the delay as unjustified and to strike out the appeal. His decision was more than merited on the facts.
5. Lord Justice Moses added that, once it had been decided that there were no proper grounds for preventing the hearing from continuing, the appellant could not use an oral renewal application to obtain another opportunity to raise the same issue. A possible sense of injustice was not, by itself, a sufficient basis for permission to appeal.

Lady Justice Black agreed with the dismissal and added no separate reasoning. The formal order was: appeal dismissed.

• High Court of Justice: MacDuff J struck out the appellant’s appeal on 18 March 2011 after an order requiring bundles to be provided within 21 days. Kenneth Parker J dismissed the application to set aside that order on 28 June 2011.
• Court of Appeal (Civil Division): The appeal was dismissed on 15 November 2012.