Kelway, R (on the application of) v IPCC

An adjournment should be refused where the proceedings are ready for determination, the applicant has participated in their preparation, and the asserted grounds disclose no sufficient procedural unfairness or other justification. An irregular order which was never validly perfected may be set aside, particularly where the parties and court have subsequently treated the proceedings as continuing. A party absent from a hearing may seek reconsideration under the applicable procedural rule, but must establish good cause and comply with the prescribed procedure.

The claimant brought four related judicial review claims concerning complaints about court proceedings, police investigations, the IPCC, and an Upper Tribunal permission decision. Six applications were listed, including renewed permission applications, an amendment application, a disclosure application, and a Cart application.

The claimant, who had conducted the litigation in person, sought an adjournment on grounds including alleged irregularity arising from an order issued on 25 October 2011, an outstanding Court of Appeal matter, and the need for legal advice. The court also considered the status of that order and the procedure to be followed because the claimant was absent.

1. Adjournment refused. The applications were ready for determination. The claimant had actively participated in extensive case management and had lodged substantial written submissions. The asserted need for legal advice, alleged procedural irregularities, and the purported outstanding appeal disclosed no sufficient ground for postponing the hearing.
2. The order issued on 25 October 2011 had not been approved by the judge, had been issued without proper notice of the hearing, and had not followed the handing down of a judgment. The court and claimant had thereafter proceeded on the basis that the permission applications remained live. The order was therefore formally set aside, or revoked under the slip rule insofar as it retained any validity.
3. The four judicial review claims and the outstanding applications were treated as continuing. The court rejected the contention that the earlier order had finally disposed of them.
4. The claimant’s absence did not require an adjournment. The court considered that the written material already lodged contained the submissions necessary for determination and that no prejudice arose from proceeding to reserve judgment.
5. The claimant was informed that an application under CPR 39.3(1) and CPR 39.3(5) could be made to reopen matters determined in his absence, but only promptly, in the prescribed form, and on establishing good cause.
6. The court reserved judgment on the six applications and related matters, including possible recusal, dismissal, referral and an Extended Civil Restraint Order. The transcript was directed to be prepared at public expense under the overriding objective.

The judgment records a purported application to the Court of Appeal concerning the order dated 25 October 2011, but concluded that no effective appeal from a surviving order was established. No appellate decision is stated.