Leave.EU Group Limited v The Information Commissioner

The Court of Appeal has power to hear an appeal in a party’s absence or to dismiss it when an appellant fails to attend a substantive hearing. That power arises both from the court’s transferred procedural powers and from its inherent jurisdiction.

Where the appellant knew of the hearing but neither attended nor sought an adjournment, the court may dismiss the appeal. Important, novel or complex issues should not ordinarily be decided on respondent-only oral submissions where full argument from both sides is required. The court may also refuse an adjournment having regard to fairness, court resources, finality and the appellant’s ability to attend or instruct lawyers.

Leave.EU Group Limited and Eldon Insurance Services Limited appealed from the Upper Tribunal (Administrative Appeals Chamber), which had upheld the First-tier Tribunal’s decision concerning enforcement notices issued by the Information Commissioner. The appeal raised issues concerning unsolicited electronic marketing and the requirement to give reasons.

Eldon consented to dismissal of its appeal. Leave.EU did not attend the substantive Court of Appeal hearing, although the court was satisfied that it knew of the hearing date. The central issue was whether the court should proceed with the appeal on the written materials, adjourn it, or dismiss it for non-attendance.

1. Disposition. Eldon’s appeal was dismissed by consent. Leave.EU’s appeal was dismissed because it failed to attend the substantive hearing despite being aware of the hearing date.
2. Jurisdiction. Sir Geoffrey Vos MR held that, by virtue of Civil Procedure Rules 1998, Part 52.20(1), the Court of Appeal had the same powers as the Upper Tribunal under Rules 8 and 38 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The court also possessed an inherent jurisdiction to hear an appeal in a party’s absence or to dismiss an appeal when the appellant failed to appear. That jurisdiction was necessary for the court to control its own procedures and give effect to the overriding objective. The reasoning was supported by General Medical Council v Theodoropolous [2017] EWHC 1984 (Admin), Connelly v Director of Public Prosecutions [1964] AC 1254 and General Medical Council v Adeogba [2016] EWCA Civ 162.
3. Refusal to hear the substantive appeal. The appeal raised important and, in some respects, novel issues. Although the court had high-quality skeleton arguments, respondent-only oral submissions would not provide a sufficient basis for deciding an appeal of that complexity, particularly where the First-tier Tribunal and Upper Tribunal had reached conclusions supporting the respondent’s position.
4. Refusal to adjourn. Leave.EU had made no application for an adjournment. The court was entitled to consider the demands on its time, the interests of other court users, the need for finality, and the fact that Leave.EU remained in existence and could have attended or instructed lawyers. In those circumstances, non-attendance reasonably indicated that Leave.EU did not wish or intend to proceed with the appeal.
5. Lord Justice Lewison and Lady Justice Asplin agreed with the judgment and orders of the Master of the Rolls.

1. Court of Appeal (Civil Division) — Leave.EU’s appeal dismissed for non-attendance; Eldon’s appeal dismissed by consent.
2. Upper Tribunal (Administrative Appeals Chamber) — The decision dated 8 February 2021 was upheld: [2021] UKUT 26 (AAC).
3. First-tier Tribunal (General Regulatory Chamber, Information Rights) — The Commissioner’s decisions were upheld in a decision promulgated on 28 February 2020.