England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(His Honour Judge Rich QC)

		Royal Courts of Justice Strand London WC2 Monday 19th November, 2001

1. LORD JUSTICE CLARKE: There are two applications before the court. The first is an application by the appellants to join two respondents, namely Shaftesbury (Piccadilly) (No 1) Ltd and Shaftesbury (Piccadilly) (No 2) Ltd. One or other or both of those respondents are, as I understand it, the true respondents to the proposed appeal. The appellant's failure to join them in the first place was because of an oversight on the part of the appellant's solicitors.
2. The judge gave permission to appeal. He undoubtedly intended that an appeal should take place, if the appellant wished to appeal, as between the correct appellant and the correct respondent. It follows, it seems to me, that the correct respondent should be named as respondent.
3. Moreover, I do not think that that application is in any sensible way linked to the respondent's application. I therefore grant it and turn to the respondent's application.
4. The respondent's application is an application that the appeal be expedited. That arises very shortly in this way. As I understand it, it is common ground that the effect of section 64 of the Landlord and Tenant Act 1954 is that if the appeal fails the appellant's tenancy will nevertheless continue for a further three months after the final disposal of the appeal to the Court of Appeal. That ignores the possibility of a yet further appeal to the House of Lords.
5. The tenancy is of a small part of a building on Piccadilly Circus. The respondent landlord has possession of the remainder of the building and is redeveloping it. It is able to redevelop the whole of the building, except that part of the building which is the subject of the tenancy. The appeal has presently been given a hearing window, as I understand it, of between 17th May and 31st October 2002. If the appeal should take place at the latter end of that window and the appeal fails, it may well be that the tenancy would exist until the autumn of 2002.
6. The respondent says, with force, that that will cause it considerable financial hardship - assuming that is that respondents like this can feel financial hardship - and in those circumstances invites the court to order expedition.
7. The only basis upon which that application is resisted is to be found in the principles set out in Unilever Plc v Chefaro Proprietaries Ltd [1995] 1 WLR 243, where the Master of the Rolls, Sir Thomas Bingham, set out some guidelines. In cases other than those of real urgency but where expedition is sought, he said this at page 247B:

"The court recognises the need to try and arrange expedited hearings where it appears that, without such expedition,

(1) a party may lose its livelihood, business or home or suffer irreparable loss or extraordinary hardship;

(2) the appeal will become futile;

(3) the resolution of numerous cases, turning on the outcome of a case under appeal, will be unreasonably delayed, or the orderly management of class or multi-party litigation in a lower court will be disrupted;

(4) widespread divergencies of practice are likely to continue, with the prospects of multiple appeals until the correct practice is laid down;

(5) there would be serious detriment to good public administration or to the interests of the public not concerned in the instant appeal."

8. It is conceded by Mr Driscoll QC, on behalf of the respondents, that none of those criteria is satisfied.
9. The Master of the Rolls continued, at page 247E:

"Where these criteria are not satisfied, the court will not ordinarily grant an expedited hearing of appeals on preliminary issues, or substantial interlocutory appeals (even where this means loss of a trial date), or appeals concerning the construction of a standard document."

10. I am not sure whether the decision of the judge is properly characterised as an interlocutory decision or not. But it appears to me that it is in the nature, at least, of a final determination of the relevant issue. It thus appears to me that this case does not fall quite within any of the categories referred to by the Master of the Rolls. In any event, he was simply laying down the general principle that, save where those five criteria are satisfied in the class of case which he was considering, the court will not "ordinarily" grant an expedited hearing.
11. It appears to me that this is a most unusual case and that justice and good sense require that if the court can accommodate an appeal in the early part of next year, it should try to do so. There will be no injustice to the appellant because if the appellant's appeal succeeds his tenancy will continue; whereas if his appeal fails he will have to give up his tenancy within three months after the decision of the court. On the other hand, the respondent will suffer financially, perhaps substantially, if the appeal fails and the appeal is not expedited. It is common ground as I understand it that there is no basis upon which the appellant could be made liable for any losses sustained the respondents as a result of by the delay in the meantime.
12. In these circumstances, I propose to order expedition.
13. It seems to me that it is appropriate for this appeal to be heard by three Lords Justices. I have made some inquiries and understand that it can probably be fixed in February or March. I shall therefore direct expedition; appeal to be heard not before 1st February and, if at all possible, before the end of March.
14. So both applications succeed.
ORDER: Application for permission to join two respondents granted; application for expedition granted; appeal to be heard not before 1st February and, if at all possible, before the end of March; appellant to pay the respondent £3,000 costs; service of an amended notice dispensed with. (Order not part of approved judgment) ____________________