James Anthony McCarthy v The Chief Constable of Merseyside Police

When deciding whether to adjourn or set aside a procedural order, the court must assess the interests of justice and the overriding objective in the context of the whole procedural history. Non-service of an order does not automatically justify relief where the party knew the relevant deadlines, failed to engage with the court, and continued to default. A last-minute adjournment request requires a cogent explanation and supporting evidence, particularly where the other party has prepared for the hearing. A totally without merit certification must be formal and explicit; it cannot be implied from the order. The court may record that an application is totally without merit without making a civil restraint order.

The claimant applied to set aside an order made by Johnson J on 26 November 2020. That order had refused to set aside an unless order made by Freedman J on 4 November 2020, struck out renewed applications for permission to appeal against interlocutory orders made by HHJ Bird, and vacated the listed hearing.

The claimant relied principally on alleged non-service of Freedman J’s unless order, asserted errors in the procedural chronology and the late provision of an appeal bundle. The claimant was not represented at the hearing. The issues were whether the hearing should proceed in the claimant’s absence, whether it should be adjourned, and whether Johnson J’s order should be set aside.

1. The hearing could properly proceed in the claimant’s absence. Under Civil Procedure Rules 1998, rule 23.11, and having regard to the interests of justice and the overriding objective, there was no unfairness in proceeding. The hearing had been notified, the claimant’s solicitor knew of it, and no adequate explanation or evidence justified an adjournment.

2. The adjournment application was hopelessly late. The claimant’s solicitor had raised the issue informally on 8 February 2021 but made no application until the day before the hearing. The defendant had prepared its case, while the claimant provided no bundle, skeleton argument or adequate explanation. Even if the matter were considered afresh, the appropriate course was to proceed on the substantive merits.

3. The application to set aside Johnson J’s order failed. The court applied the principles identified in Collier v Williams [2006] EWCA Civ 20 at paragraph 37 and Tibbles v SIG Plc [2012] EWCA Civ 518 at paragraph 39. There was no material error, material change in circumstances or substantially different material justifying relief.

4. Non-service of Freedman J’s unless order did not determine the issue. Johnson J had considered that circumstance alongside the claimant’s prior knowledge of the hearing and deadlines, repeated inactivity, failure to seek clarification, and failure to comply even after learning of the order and its final deadlines. In those circumstances, striking out the renewed permission applications and debarring further pursuit was just, proportionate and plainly correct.

5. The claimant’s application was dismissed. Johnson J’s order stood. The renewed applications for permission to appeal were struck out and the claimant was debarred from proceeding with them. The defendant received the costs of the hearing on the standard basis. The application was certified as totally without merit under Civil Procedure Rules 1998, rule 23.12, but no civil restraint order was made. Liberty was given to apply within 21 days for an order that the claimant’s solicitors pay the costs personally; no finding was made on that issue.

1. High Court (Queen's Bench Division): Freedman J made an unless order on 4 November 2020. Johnson J refused to set it aside on 26 November 2020, struck out the renewed applications for permission to appeal and vacated the listed hearing. The present court dismissed the application to set aside Johnson J’s order.