Cunningham v Aurora Kendrick James Ltd

Where a litigant cannot attend a hearing because of genuine acute illness, the proper course may be to adjourn the application to the earliest convenient date. The court may retain the matter where the judge has already read the papers and doing so would avoid duplicated judicial effort. That administrative course should remain subject to the court’s listing requirements and should not prevent the case being released to another judge where convenient.

The appellant sought renewed permission to appeal against an order of the Employment Appeal Tribunal made on 7 June 2012 in UKEAT/0055/12/MAA. Permission had previously been refused on the papers by Mummery LJ on 29 October 2012.

The appellant, who was unrepresented and had significant hearing and other health disabilities, did not attend the renewed hearing because he had become seriously ill overnight. The central issue was whether the application should proceed in his absence or be adjourned.

1. Application adjourned. The court accepted that the appellant’s notification of serious overnight illness was genuine. In the circumstances, and having regard to his disabilities and his intention to attend if able, the proper course was to adjourn the renewed permission application to the earliest convenient date: paras [2]-[5].
2. The judge considered that retaining the application would avoid wasting judicial resources because he had already spent several hours reading the papers. Retention was to be only where practicable and did not restrict the listing officer’s discretion to release the matter to another Lord Justice if the court’s listing arrangements made that convenient: paras [4]-[5].
3. The court made no determination on the merits of the proposed appeal or on whether permission should ultimately be granted.

• Court of Appeal (Civil Division): Mummery LJ refused permission to appeal on the papers on 29 October 2012. The renewed oral application was adjourned to the earliest convenient date.
• Employment Appeal Tribunal: HHJ Clark made the order challenged by the proposed appeal on 7 June 2012 in UKEAT/0055/12/MAA.