Peterkin v London Borough of Merton & Anor

Where an applicant for permission to appeal has received clear notice of an oral reconsideration hearing, has been given an additional opportunity to attend, and neither attends nor explains the absence, the court may determine the application without the applicant. Permission should be refused where the proposed grounds have no merit and the appeal has no real prospect of success.

Mr Peterkin applied for permission to appeal against judgments and consequential orders made by Vos J on 16 November 2011 and 10 February 2012. Permission had been refused on paper by Lewison LJ on 5 October 2012. An oral reconsideration hearing was adjourned once to give Mr Peterkin a further opportunity to attend. The hearing was then brought forward, and he was informed of the revised date and given additional time to attend. He did not appear and provided no explanation. The central issues were whether the applications should proceed in his absence and whether the proposed appeal had a real prospect of success.

1. Procedural fairness and non-attendance. Lord Justice Kitchin was satisfied that the applications could properly be determined in Mr Peterkin’s absence. He had failed to attend the first oral hearing, but the court had adjourned the matter to give him one further opportunity. He was informed by letter of the revised hearing date and had communicated with the Civil Appeals Office by telephone, so there was no reason to think that he lacked notice.
2. The hearing time was moved from 10.30 am to 11 am to give him ample opportunity to attend. He lived in South West London, did not attend, and gave no indication that he was on his way or needed more time. In those circumstances, it was appropriate to dismiss the applications.
3. Merits. The court considered the applications, the papers, the grounds of appeal, and Mr Peterkin’s written arguments and communications. It concluded that the grounds advanced had no merit and that an appeal had no real prospect of success.
4. The applications for permission to appeal were therefore refused. The formal order was: applications refused.

• Court of Appeal (Civil Division): On 29 January 2013, the applications for permission to appeal were refused. The court proceeded in the applicant’s absence and found that the proposed appeal had no real prospect of success: [2013] EWCA Civ 121.
• High Court of Justice (Chancery Division): Vos J gave judgments and made consequential orders on 16 November 2011 and 10 February 2012, against which permission to appeal was sought.
• Permission stage: Lewison LJ refused permission to appeal on the papers on 5 October 2012. An oral reconsideration hearing was subsequently adjourned once to provide a further opportunity to attend.