Selfridge Estate Limited v Winchester Property Limited

An appeal may be struck out where the appellant persistently fails to comply with procedural directions, provides no adequate explanation, and the appeal is bound to fail on the material available. Under CPR rule 52.18, those circumstances may amount to a compelling reason for striking out the appeal notice. The court may proceed in a party’s absence where it is satisfied that granting the relief sought is appropriate. An adjournment should be refused where it would cause further delay, the party has ignored court orders, gives no sufficient reason, and the appeal has no real prospect of success.

Selfridge appealed against a County Court order granting Winchester possession of commercial premises after the court found that a break notice had been validly served. The appeal was transferred to the High Court. Selfridge failed to file the required appeal bundle, grounds of appeal, or an application to extend time, and did not attend the hearing or provide an adequate explanation.

Winchester applied to strike out the appeal notice, dismiss the application for permission to appeal and interim relief, and adjourn the costs issues generally. The central issues were whether the hearing should be adjourned and whether Selfridge’s procedural defaults constituted a compelling reason to strike out the appeal.

1. Adjournment. The court had a general discretion to adjourn under CPR Part 3. There was no good reason to exercise it. Selfridge had ignored the order requiring an appeal bundle, had not sought an extension, had offered no sufficient explanation, and appeared to have no real prospect of succeeding on the material before the court. Further delay would prejudice Winchester by prolonging uncertainty concerning the premises.
2. Proceeding in absence. Selfridge failed to attend through its director or counsel. CPR rule 1.1(2) required proportionate, expeditious and fair conduct of the case, and CPR rule 23.11 permitted the court to proceed in a party’s absence. Applying Fox v Graham Group Limited, the court was satisfied that it was right to grant the relief sought despite Selfridge’s absence.
3. Strike-out. Under CPR rule 52.18(1) and (2), the court could strike out the whole or part of an appeal notice where there was a compelling reason. Selfridge’s failure to comply with the directions, the expiry of more than six weeks without an extension application or explanation, and the appeal’s lack of any realistic prospect of success together constituted a compelling reason.
4. Winchester’s application was allowed. The application for permission to appeal and the application for interim relief were dismissed or struck out as sought. The stay was redundant because the writ of possession had already been executed. The question of costs was adjourned generally, with liberty to apply on notice.

1. High Court (King’s Bench Division): Selfridge’s appeal was struck out and the related applications were dismissed under [2023] EWHC 1945 (KB).
2. County Court at Central London: Recorder Hodge Malik KC ordered possession on 6 March 2023 after finding that Winchester’s break notice had been served by post and by leaving a copy at the premises. A later order purporting to dismiss the appeal was held to be of no effect because the appeal had already been transferred to the High Court.