Benjamin Kofi Ackah Brem v Dominic Iver Clark & Anor

An appellate court should not interfere with a case-management decision unless it is plainly wrong, in the sense that it falls outside the generous ambit within which reasonable decision-makers may disagree, or unless the decision is unjust because of a serious procedural or other irregularity. Repeated adjournments may properly be refused where further delay would cause disproportionate cost and consume scarce court resources. A procedural failure in the lower court does not necessarily justify appellate intervention if it caused no injustice. In assessing whether defective litigation should proceed, the court may consider the state of the pleadings, the value and apparent merits of the claim, expert evidence, costs already incurred and the prospects of putting the case into a trial-ready condition.

The claimant appealed, with permission granted by Ritchie J on 31 January 2023, against the decision of His Honour Judge Saunders dated 27 July 2022. The lower court refused a further adjournment because the claimant’s counsel was unavailable, struck out the claims against both defendants and ordered indemnity costs.

The underlying dispute arose from the purchase of residential premises. The claimant alleged that the property conveyed included a larger garden and claimed losses against the vendor and conveyancing solicitor. The appeal concerned whether the refusal to adjourn was wrong or unjust, whether the strike-out decision was procedurally irregular or substantively unjust, and whether the costs order was permissible.

1. The appeal was dismissed. The test under CPR r.52.21(3) required the claimant to show that the lower court’s decision was wrong, or unjust because of a serious procedural or other irregularity.

2. The refusal of a further adjournment was a case-management decision. Applying the approach in Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] UKSC 64 and Hadmor Productions Ltd v Hamilton [1983] 1 AC 191, the appellate court should not interfere merely because it might have exercised the discretion differently. The lower court was entitled to regard the adjournment as the claimant’s third opportunity, and to weigh the history of delay, the defendants’ costs and the need to deal with litigation expeditiously and fairly.

3. The judge should have taken greater care to explain the distinct tests for strike-out and summary judgment and to give the unrepresented claimant a clearer opportunity to make submissions. There was also some elision between those two applications. Nevertheless, the procedural shortcomings did not cause injustice. The pleaded case remained incoherent, allegations of fraud or collusion persisted despite their withdrawal, and the claim appeared unlikely to be placed into a trial-ready condition without further wasted costs.

4. The lower court was entitled to consider the modest value of the claim, the costs already incurred, the apparent merits, the criticisms of Mr Orah’s valuation report, the E.Surv valuation and the claimant’s continuing reliance on it. In those circumstances, striking out the claim against both defendants was within the permissible case-management response. The indemnity costs order was not shown to be wrong in principle.

• High Court (King’s Bench Division): Appeal against the decision of His Honour Judge Saunders dated 27 July 2022 dismissed. The lower court’s strike-out and indemnity costs orders remained in force.