Jacqueline Samuels (t/a Samuels & Co Solicitors) v Christopher John Laycock

An appellate court may recognise a serious procedural irregularity but nevertheless uphold the decision below if allowing the appeal would not be just. The relevant question is whether the irregularity made it unjust for the lower order to stand, assessed in the circumstances as they exist at the appeal.

Where a party has failed over a prolonged period to progress modest defamation proceedings, breached the duty to copy communications to the other party, ignored procedural guidance and proposed unrealistic trial directions, it may be unfair and oppressive to require the opposing party to face a stale trial. The appellate court may therefore allow the lower order to stand despite the lower court’s failure to consider a relevant witness statement.

The claimant, a sole-practitioner solicitor, appealed against Master Thornett’s order of 19 December 2022 dismissing her application to restore a libel claim and confirming that the claim stood struck out.

The appeal arose after the Master failed to consider a witness statement filed by the claimant on 7 December 2022. The claimant argued that this was a serious procedural irregularity and that the order was invalid because it did not state the right to apply under CPR 3.3. The defendant opposed the appeal and relied on the claimant’s prolonged failure to progress the proceedings, procedural breaches and the prejudice of a delayed trial.

The central issue was whether the irregularity made it unjust for the Master’s order to stand.

1. The appeal was dismissed. The court accepted that there had been a serious procedural or other irregularity because Master Thornett had not known of the claimant’s witness statement filed on 7 December 2022.
2. Under CPR 52.21(3), an appeal may be allowed where the lower court’s decision was wrong or unjust because of a serious procedural or other irregularity. CPR 52.20 gave the appellate court the powers of the lower court, including power to affirm, set aside, vary or remit the order.
3. The existence of an irregularity did not require the appeal to be allowed. The question was whether it would be unjust to allow the order to stand. The court considered the circumstances at the date of the appeal.
4. Relevant considerations included the claimant’s failure to make meaningful progress towards trial for more than three years; her status as a solicitor; repeated breaches of CPR 39.8; failure to heed advice to obtain specialist representation; the modest value and historic nature of the claim; failure to engage with compromise overtures; the burden placed on the unrepresented defendant; and the prospect of a stale trial concerning whether the claimant’s firm had acted deceitfully.
5. The witness statement did not materially advance the proceedings and proposed unrealistic directions. In the circumstances, requiring the defendant to face a trial would be unfair and oppressive. It was therefore not unjust to uphold the Master’s order despite the procedural irregularity.

• High Court (King’s Bench Division): The appeal against Master Thornett’s order dated 19 December 2022 was dismissed. The order dismissing the claimant’s application to restore the claim, and confirming that the claim stood struck out, was allowed to stand.