McGuire v Rose

Where an appellant has only recently obtained pro bono representation and counsel has not had a proper opportunity to prepare, the interests of justice may require an adjournment of an application for permission to appeal and any appeal. The court should allow sufficient time for counsel to take instructions, examine the papers and present the case properly. A second appeal presents an additional hurdle. An application to adduce further evidence may also face difficulty where the evidence concerns matters previously identified as relevant, although the court may leave that issue open pending proper preparation.

The appellant applied for permission to appeal against an order made by Lewison J in the Chancery Division on 28 July 2010. The matter had previously been considered by Rimer LJ, who directed an oral, on-notice hearing, with the appeal to follow if permission were granted.

The appellant had recently obtained counsel through the Bar Pro Bono Unit. Counsel had not yet had a proper opportunity to take instructions or consider the substantial papers. The respondent opposed an adjournment because of the further irrecoverable expense. The central issue was whether the hearing should be adjourned to enable the appellant’s case to be properly prepared.

1. Application adjourned. The court held that the interests of justice required an adjournment because counsel for the appellant had only just been instructed and had not had a proper opportunity to take instructions, acquaint herself with the papers or present the case in a properly considered and prepared manner.
2. The respondent’s concern about further expense did not outweigh the need for a fair and properly prepared hearing. The matter was to be relisted early in 2013, not before 1 February 2013, on a date convenient to counsel.
3. The court noted that this was a second appeal, which presented an additional hurdle in obtaining permission. It also recognised that any future application to adduce additional evidence might face difficulty because the potential relevance of valuation evidence had been identified on earlier occasions.
4. The court made no determination on the merits of the proposed appeal, the admissibility of further evidence or the prospects of obtaining permission. Lord Justice McFarlane agreed.

• High Court of Justice, Chancery Division: Lewison J made the order under challenge on 28 July 2010.
• Court of Appeal (Civil Division): Rimer LJ directed an oral, on-notice permission hearing, with any appeal to follow if permission were granted. The present court adjourned the application for relisting.