Transomas Limited & Anor v Kheri Trading Limited & Anor

An appeal does not automatically stay an order or decision of the lower court. A party seeking a stay must apply to the appropriate court.

An adjournment of a consequential hearing should be refused where the party has had adequate notice, has not taken reasonable steps to obtain representation, provides no satisfactory evidence supporting non-attendance or funding difficulties, and an adjournment is unlikely to affect the outcome. The court must apply the overriding objective and remain scrupulously fair, including where litigants in person are involved.

This was a consequential hearing following the dismissal of the claim on 13 November 2023. The claimants did not attend and were unrepresented. Their director emailed the court shortly before the hearing, referring to an intended appeal, alleged data problems, lack of legal advice, illness and exhaustion.

The claimants sought, in substance, an adjournment and a stay. The defendants opposed the adjournment and invited the court to proceed in the claimants’ absence. The central issues were whether the hearing should be adjourned and whether the intended appeal prevented the court from dealing with consequential matters.

1. Adjournment refused. The court treated the director’s email as an application under CPR 3.1(2)(b). Applying the overriding objective, the court held that continuing with the hearing was the only fair and proportionate course.
2. The claimants had known about the hearing since the claim was dismissed. The court had advised the director to obtain legal representation, but there was no evidence that any attempt had been made to do so. There was also no evidence of funding difficulties that prevented representation. The court considered that legal advisers could have obtained sufficient understanding of the case and responded to the defendants’ submissions.
3. The director’s asserted illness was unsupported by medical evidence. Her extensive and coherent correspondence on the morning of the hearing did not demonstrate that she was unable to attend. If she could not personally represent the companies, it was incumbent on her as director to make appropriate arrangements for their interests to be protected.
4. The filing of an appeal did not automatically stay the proceedings. CPR 52.16 provides that, unless the appeal court or lower court orders otherwise, an appeal does not operate as a stay. The late stay application could be dealt with during the hearing and did not justify an adjournment.
5. The proposed joinder of the director for the purpose of seeking a non-party costs order did not make proceeding unfair. The initial hurdle for joinder was low, and any order would leave her an opportunity to respond at the later hearing required by CPR 46.2(1)(b).
6. The court therefore proceeded with the consequential hearing in the claimants’ absence.

The judgment records that the action had been dismissed on 13 November 2023. An appeal had been filed against the earlier refusal on 27 October 2023 of an application to adjourn the trial, but no permission to appeal had been determined. The present judgment concerned consequential matters following dismissal.