Barons Finance Ltd v Odedra

An appellate court may refuse to reinstate an appeal struck out for failure to comply with procedural orders and listing requirements where delay is wholly inexcusable, the explanation is unsupported by evidence, and non-compliance continues. The court may also consider whether the underlying issues can still be addressed by the lower court. Refusal is appropriate where that court is better placed to determine complex factual issues and the appellant retains an opportunity to advance the substance of its case, including any issue estoppel or res judicata argument. The appeal remains struck out, with any fee paid for the aborted hearing returned.

The Court of Appeal considered an application by Speedy Bridging Finance for oral reconsideration of an order striking out an appeal brought by Reddy Corporation and Speedy Bridging Finance. The appeal had been struck out for breach of an order requiring amended grounds of appeal, failure to pay the requisite fee, and failure to comply with listing requirements.

The underlying appeal challenged an order of His Honour Judge Mackie QC dated 25 February 2014, transferring proceedings from the Luton County Court to the London Mercantile Court and setting aside a substitution order and charging order. Permission to appeal had been granted on arguable grounds concerning an earlier Luton trial, including the treatment of the loan agreement under the Consumer Credit Act 1974, correspondence with the court, and the treatment of evidence. The central issue was whether the appeal should be reinstated despite the delay and continuing procedural non-compliance.

Disposition

1. The application for reconsideration was dismissed. The appeal remained struck out, and the fee paid by Mr Ghopee was to be returned.
2. The court rejected the explanation that the listing notification had not been received. It had been sent to the correct address and postcode. No supporting evidence was produced, and the explanations given for non-receipt had changed. The explanation advanced orally at the last minute was not accepted.
3. The delay was wholly inexcusable. The applicants had also failed to comply with the order requiring amended grounds of appeal to reflect the limited grounds for which permission had been granted. Grounds alleging bias or prejudice remained in the amended grounds despite permission having been refused on those grounds.
4. Those matters justified maintaining the strike-out. The court was entitled to take account of the continuing breach, the failure to comply with listing and fee requirements, and the staleness of the appeal.
5. The court had considered the merits sufficiently to explain the practical consequence of the strike-out. The underlying issues could be reconsidered by the London Mercantile Court, which was better equipped to deal with the complex factual matters. The parties would have the opportunity there to argue that the issues had already been fully ventilated and to rely, where appropriate, on issue estoppel or res judicata. Similar orders to those made after the earlier Luton trial could therefore still be sought.

• Court of Appeal (Civil Division)—on 28 July 2015, dismissed the application for reconsideration of the strike-out order. The appeal remained struck out and the fee was returnable. [2013] EWCA Civ 1045
• High Court of Justice, Queen's Bench Division, Mercantile Court—His Honour Judge Mackie QC ordered on 25 February 2014 that the claim be transferred from the Luton County Court, and set aside the substitution and charging orders made there.
• Luton County Court—after an earlier trial, His Honour Judge Kay QC had declared the loan agreement unenforceable but had made consequential orders rather than dismissing the relevant application.