COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION – Mr Justice Rimer
|Royal Courts of Justice|
London, WC2A 2LL
B e f o r e :
LORD JUSTICE TUCKEY
LORD JUSTICE JONATHAN PARKER
Mrs Denyse Audergon
- and - La Baguette Ltd & Ors Defendant/
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Peter Crampin QC and Mr John Smart of Counsel (instructed by Alexander Mercouris of the Bar Pro Bono Unit) for the Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Jonathan Parker :
THE RELEVANT PROVISIONS OF THE CPR
The appeal court’s discretion to proceed by way of rehearing
“52.11 – (1) Every appeal will be limited to a review of the decision of the lower court unless –
(a) ....; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing.
(2) Unless it orders otherwise, the appeal court will not receive –
(a) oral evidence; or
(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
(5) ....” (Emphasis supplied.)
The court’s discretion under paragraph 19(2) of the Practice Direction to lift the automatic stay imposed by paragraph 19(1)
“(1) If any existing proceedings have not come before a judge, at a hearing or on paper, between 26 April 1999 and 25 April 2000, those proceedings shall be stayed.
(2) Any party to those proceedings may apply for the stay to be lifted.
“(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –
(a) the interests of the administration of justice;
(b) whether the application for relief has been made promptly;
(c) whether the failure to comply was intentional;
(d) whether there is a good explanation for the failure;
(e) the extent to which the party in default has complied with other rules, practice directions and court orders and any relevant pre-action protocol;
(f) whether the failure to comply was caused by the party or his legal representative;
(g) whether the trial date or the likely date can still be met if relief is granted;
(h) the effect which the failure to comply had on each party; and
(i) the effect which the granting of relief would have on each party.
“(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as practical –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) as to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues;
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
FACTUAL AND PROCEDURAL BACKGROUND
“.... the basis on which, if at all, the company actually acquired the business of Le Refuge is left shrouded in vagueness”.
“What, if anything, she had attempted to do with them was apparently also hopeless and so Mr Moore devoted himself to reorganising them properly. That took him until June 1998 [a further period of some six months] when he returned the papers to Mr Smart. In summary, Mr Moore took a year to put the papers in a proper state of order so that counsel could deal with the matter. I find it difficult to understand how more than a day or so could have been required for the task.”
THE HEARING BEFORE MASTER WINEGARTEN
“The court will readily lift a stay if the case is such as has not already gone to sleep for such a long time that the court would strike it out under the old rules for want of prosecution.
I must say immediately that my decision is, on balance, not to lift the stay and if the stay had not fallen I would strike it out for want of prosecution. This is on balance but it is not an easy case to decide and I will give leave to appeal. Because of the lateness of the hour I will just deal with the outlines of my reasons, which is all that is necessary.”
“There are two periods of unexplained delay, or delay which having heard the explanation given is unsatisfactory. The first one was for a whole year between July 1997 until July 1998 when what was being done was putting the papers relating to the Claimant’s case in order. And there has been delay more recently but under the present rules what is most important is the overriding objective. The decision in this case over whether the stay should be lifted or the claim should be struck out under the inherent jurisdiction are all to be determined by this.
The overriding objective is to enable the court to deal with cases justly and includes so far as practicable ensuring that the parties are on an equal footing; saving expense; dealing with the case in ways which are proportionate to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party; ensuring that it is dealt with expeditiously and fairly; and allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.
In this case the delay is such that the parties have to remember what was said and agreed orally in 1993. It is true that the abortive proceedings in 1996 generated affidavit evidence and there may be some tape recordings to refresh their memories of what was said in 1995 – even if there is privilege preventing the court from listening to them I cannot see why the parties themselves cannot listen to them.
I have also to take into account even now the European Convention on Human Rights and the consideration of whether there is any possibility of a fair trial within a reasonable time by an independent tribunal. This applies to any party whether a claimant or defendant and it is difficult to think a rehearing in 2001 of events in 1993 in the context of a case started in 1996 will be a reasonable time in which any party can have a claim heard.
I am satisfied on balance that despite the existence of affidavits about the dispute that because the nature of the whole arrangement or scheme was oral it is now going to be difficult to hold a fair trial. Therefore I will not lift the stay and would have acceded to the request to strike out the Statement of Claim. I have arrived at my decision on balance and I cannot say that another tribunal might not have dealt with the matter differently. I cannot say that the claimant has no real prospect of success on appeal. These are the reasons for my decision and I will make the appropriate order.”
THE APPEAL TO THE HIGH COURT
“(1) As the Master found, a letter dated 19 April 2000 addressed to the Clerk to the Master sent with the Claimant’s Application Notices was received by the Court on 20 April 2000 but as a result of a backlog in correspondence the letter did not come before the Master until 11 May. The application was issued on 17 May. The stay was imposed on 25 April on account of administrative reasons, which were not the Claimant’s fault and it should therefore have been lifted. The Master should not have had regard to whether he would have struck out the action for want of prosecution.
(2) The Master had not pre-read the entirety of the bundles of affidavits and witness statements before the hearing and even though he sat from 10.35am to 2pm without a break, he had not by 2pm been able to consider the entirety of the materials placed before him. He ought to have acceded to Counsel for the Claimant’s request to reserve his judgment in order to give him the opportunity to read all of the affidavits and the cases referred to in the Claimant’s skeleton argument. Instead, he delivered a short judgment at 2.10pm.”
“So the first point that is made is really on Part 52 and really the question of whether your Lordship considers this as simply a review of the Master’s decision of a rehearing de novo. My submission is there should be a rehearing in the old sense”.
“Because if the court has the matter dealt with as a rehearing it is not bound by the Master’s decision.”
“The second reason for seeking to have the matter dealt with as a rehearing was an unfortunate one and that concerned the time that was allowed for the hearing. The initial time estimate was two and a half hours. Then the cross-application for the strike out was listed at the same time and that itself had an estimate of an hour. As set out in ground 1(2) of the Notice of Appeal the Master had not read the entirety of the affidavits and witness statements before the hearing. That is not to criticise him, but though he sat from 10.35 till 2 without a break, he had not by 2pm been able to consider the entirety of the material that was placed before him. What [is] said is that he ought to have acceded to my request to reserve his judgment in order to give him the opportunity to read all of the affidavits and the cases referred to in my skeleton argument.”
“The main point, and the reason why I submit it is in the interests of justice to hold this appeal as a rehearing is particularly the contents of the affidavits that were filed in the Mareva proceedings in 1996. This was evidence which the Master did not have in time to consider and unfortunately that has undermined his conclusion that it is not possible to have a fair trial which was the main reason that he refused to lift the stay and said he would have struck out the case for want of prosecution, the problems with witness recollection. .... It unfortunately was not a hearing that was one which can be said to be a hearing where really the whole of the case put forward by the Applicant to have the stay lifted was taken into account.”
“Can I see whether there is any opposition? I have no particular objection to dealing with this by way of a rehearing, but I do not know whether Mr Prior wants to argue otherwise. I see the way you put it, Mr Smart, and no doubt you do too, Mr Prior.”
“MR PRIOR: Yes. If your Lordship felt that that is the better way to proceed I do not violently object to it. I see it as a much narrower issue. In fact one of the things that happened below was that Master Winegarten was looking clearly at the issue of the stay, although I will refer to the fact that I do not think there was an application as such before him on that. But he was looking at whether anything in the argument that was being put on strike out, whether that affected the stay. The thing rather grew like Topsy and we were discussing the amending of the writ and so on. We did not deal with, I felt ... I felt the Master dealt adequately with the issue that he subsequently ruled on.
MR JUSTICE RIMER: I think the main point is that there is a perceived concern on the part of the Claimant that the Master may not have had sufficiently close regard to everything that could have been extracted from the affidavits. That is the real point, I think, and judging from the time the Master had to deal with the thing there is probably something in that, because there is quite a lot to read and if that is basically all the time he had, he obviously could not have had regard to everything on the detail. That being what seems to me to be a good arguable point, I am quite sympathetic to hearing the thing as it were de novo, i.e. to hearing the thing as a rehearing. Do you want to argue against that?
MR PRIOR: No. I have no objection to that, my Lord, but I would ask you perhaps to help me on what my understanding of it is. What are we actually hearing de novo? Is it an application to lift the stay or is it an application to amend?
MR JUSTICE RIMER: I think if I am disposed to I hear what was before the Master as it were afresh and I am going to rule in favour of that....”
“I should mention at the outset that I dealt with the appeal by way of a rehearing rather then simply by way of a review of the Master’s decision. Part 52.11 (1) (b) of the CPR empowered me to do this if I considered that, in the particular circumstances of the case, it was in the interests of justice to do so. Mr Smart had submitted that it was. The point that concerned him was that he claimed that the Master had arrived at his decision without having first had or taken the opportunity to read the entirety of the evidence in the case, in particular that served in relation to an application for a freezing order which Mrs Audergon had made in June 1996. The evidence is quite substantial and it appears that the Master had not read all of it before the hearing before him started. That hearing commenced in the morning and ran on uninterrupted until about 2.10pm when the Master gave a short extempore judgment. It is clear that all that evidence was not read to him during the hearing either. In those circumstances Mr Smart submitted that justice demanded that I should treat this appeal as a rehearing, on the basis that there was a fear that the Master had not taken due account of all the factual matters that he should have done. The defendants did not resist my adopting that course and I considered it right to do so. I add that I am not to be taken to be criticising the Master for dealing with the matter in the way he did. I have no doubt that he was satisfied that he had absorbed sufficient of the factual essence of the case to make a fair judgment in it. Having regard to the particular issues raised before him, it was not in my view the type of case where it was essential for the court to have grasped every single factual detail before being put in a position to form a judgment.”
“.... [t]he history of the steps Mrs Audergon has taken to advance her claim makes for lamentable reading”.
“The argument before me, as I have said, has been in the nature of a rehearing and I have in substance heard argument on only one aspect of the issues before the Master, namely whether the action should be dismissed on the grounds of prejudicial delay. If it should then, in principle, as I have indicated, I consider it would be right to lift the stay and dismiss the action. If if should not, then in my view it ought logically to follow that I should lift the stay and give directions with a view to the matter coming on for an early trial.
I do not regard the exercise which I have to perform as an easy one, nor indeed does it appear that the Master regarded it as an easy one.”
“First, a claimant has and always has had a duty to get on with proceedings, and is liable to sanctions if he does not.
Secondly, this duty was taken more seriously under the RSC even before the CPR came into effect: see Arbuthnot Latham v. Trafalgar Holdings  1 WLR 1426. This is a point of significance because part of the period of the delay was before the CPR came into force.
Thirdly, following the coming into effect of the CPR, keeping to time limits laid down by the CPR or by the court itself is accorded more importance than it was previously, see per Lord Woolf in Biguzzi v. Rank Leisure plc 1 WLR 1926 at 1932G. One sees that principle reflected also in the observations of Lord Lloyd of Berwick in UCB Corporate Services Ltd v. Halifax SW Ltd (unreported 6 December 1999 at paragraph 17).
Fourthly, under the old law a claim could normally only be dismissed for want of prosecution where the plaintiff’s default or delay had been intentional and contumelious, or where he had been guilty of inordinate and inexcusable delay, giving rise to a substantial risk that a fair trial would not be possible, or to serious prejudice to the defendant (see Birkett v. JamesAC 297).
Fifthly, the court is now prepared to dismiss a claim for delay even if neither of Lord Diplock’s two requirements as laid down in Birkett v. James  AC 297 is satisfied (see Biguzziv. Rank Leisure plc 1 WLR 1926 at 1932 G).
Sixthly, the duty of a claimant to pursue an action expeditiously and in accordance with the rules is all the more important when the claimant has already had a significant benefit at the expense of the defendant from the action – for instance, in this case the benefit of the search order. This is perhaps even more true where the claimant has, and continues to have, the benefit of a continuing interlocutory injunction to the defendant’s disadvantage, which injunction is to run to trial. ....
Seventhly, the CPR enable the court to adopt a more flexible approach. The previous “all or nothing” extremes of either dismissing the claim for delay or permitting it to continue are now merely the two ends of a spectrum. The court has other sanctions at is disposal which it can and, in appropriate cases, should impose, rather than adopting one of the two extreme positions. ....
Eighthly, in light of general principle and the overriding objective (see CPR r.1.1(2)) the sanction, if any, to be invoked by the court to deal with a particular case of delay should be proportionate. To dismiss a claim where the claimant appears to stand a reasonable chance of success and of recovering substantial damages is a strong thing to do. Particularly so bearing in mind Article 6(1) of the [ECHR] ....
Ninthly, it appears to me that it is normally relevant to consider the following factors. First, the length of the delay; secondly, any excuses put forward for the delay; thirdly, the degree to which the claimant has failed to observe the rules of court or any court order; fourthly, the prejudice caused to the defendant by the delay; fifthly, the effect of the delay on trial; sixthly, the effect of the delay on other litigants and other proceedings; seventhly, the extent, if any, to which the defendant can be said to have contributed to the delay; eighthly, the conduct of the claimant and the defendant in relation to the action; ninthly, other special factors of relevance in the particular case.”
“The first observation I would make is that I do not regard Mrs Audergon’s case as an obviously strong one. The to-ing and fro-ing with the Legal Aid Board speaks fairly eloquently as to that, and the more Mr Prior took me into the history of the matter the more doubtful I became as to whether Mrs Audergon really does have a claim of substance. Her case looks to be weak and gives rise to many questions. Having said that, however, the defendants’ application is not one seeking to strike out the action on the grounds that it cannot possibly succeed and nor do I consider that I can safely arrive at any such conclusion on this application. I conclude that I should not approach this application on the basis that the action is either certain or indeed likely to fail. I approach it on the basis that it must be regarded as having at least some prospect of success and that in principle, subject to all other considerations, it is a claim which Mrs Audergon ought to be allowed to prosecute to trial. Put the other way, I consider that it would be seriously prejudicial to her if she were deprived of that right.
Secondly, her prosecution of the claim to date has been lamentable. It would seem that her causes of action probably accrued in 1993, and at the latest it may have been early 1994 when she first learnt, so she says, that she had been removed from the board. Yet she did not sue until June 1996, having learnt about the all-important sale to Regent over a year earlier. Her initial stroll to the court was therefore a leisurely one, for which there appears to be no explanation.
Thirdly, when in due course she did sue her pursuit, or non-pursuit, of the action was quite extraordinary.”
“Although much of the remainder of the overall period is explained as having involved endless correspondence, etc, in connection with legal aid problems and difficulties of one sort or another I find it difficult to regard the entirety of that period as having been adequately explained or excused, although I that much of it has been. Taking an admittedly broad brush view, I consider that this is a case in which about two years of the overall delay of just under four years is inadequately explained or excused.
Fourthly, however, the case is an unusual one in that it does not appear to me that, despite these extraordinary delays, Mrs Audergon can be said ever to have been in breach of any rule or order of the court. Having extended the defendants’ time generally for their Defences at an early stage, I do not consider that Mrs Audergon ever became subject to any obligation to comply with any such rule or order – at least the contrary has not been demonstrated or suggested to me. In these circumstances, I do not regard this as a case in which Mrs Audergon has simply displayed a blatant disregard of the rules or orders of the court, or that she can be regarded as having acted in a way which amounts to an abuse of the process of the court.
Fifthly, although the defendants are now, as defendants always are in these sorts of applications, full of criticisms of her delays, there is no reason at all why they could not themselves have taken steps to have the action prosecuted. .... Like all defendants, they much preferred to let sleeping dogs lie hoping that if the action was ever revived they could complain bitterly, as defendants always do, about how irremediably prejudiced they have been by the delay.”
“Having outlined the bare bones of the main points made to me, I have to deal with the issues raised by this appeal having regard to the overriding objective of the CPR and should, in particular, abstain from any inclination to decide this case by reference to the principles and authorities which governed this sort of issue prior to the CPR. In doing so I cannot, I consider, avoid assessing Mrs Audergon’s conduct in her prosecution of this case during the pre-CPR period by reference to the former practice. But, for reasons given, I do not, despite the considerable delays to which I have referred, find that she has been guilty of an abuse of the process of the court or can fairly be accused of engaging in conduct which can be regarded as an affront to the court. Nor, despite a submission from Mr Prior to the contrary, do I regard this as a case in which it is legitimate to draw an inference that Mrs Audergon does not wish to bring her case to trial. The case did of course become stayed in the circumstances I have mentioned, but that was because of the incompetence of Mrs Audergon’s solicitors and their half-baked efforts to keep the action on track, not because Mrs Audergon was simply content to allow it to become stayed.
Ultimately, I consider that the question I have to ask myself is whether, despite all the admitted delay, it is still now possible to have a fair trial of the issues as I understand them to be.”
“The question whether in this case there can still be a fair trial is not, as I have said, a wholly straightforward one. The Master took a like view and it is one on which different minds would be likely to have different views. Ultimately, however, I have come to the conclusion that it would be disproportionately prejudicial to Mrs Audergon to strike out her action. Despite all her delays, I do not regard her as having abused the process of the court and I am not satisfied that this is a case in which there cannot be a fair trial....”
THE GROUNDS OF APPEAL FROM RIMER J
THE ARGUMENTS ON THIS APPEAL
“.... it was not the type of case where it was essential for the court to have grasped every single factual detail before being in a position to form a judgment”.
“The drawing of inferences and the assessment of risk involves an element of judgment by the tribunal. Inevitably, in cases near the margin, the judgment made can differ. But this does not convert the willingness or unwillingness to draw an inference into a proposition of law. Questions of risk of prejudice or unfairness and loss of memory are difficult ....”
“30. As a general rule, every appeal will be limited to a review of the decision of the lower court. This general rule will be applied unless a practice direction makes different provision for a particular category of appeal, or the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a rehearing: CPR r.52.11(1). The appeal court will only allow an appeal where the decision of the lower court was wrong, or where it was unjust because of a serious procedural or other irregularity in the proceedings of the lower court: CPR r.52.11(3).
31. This marks a significant change in practice, in relation to what used to be called “interlocutory appeals” from district judges or masters. Under the old practice, the appeal to a judge was a rehearing in the fullest sense of the word, and the judge exercised his/her discretion afresh, while giving appropriate weight to the way the lower court had exercised its discretion in the matter. Under the new practice, the decision of the lower court will attract much greater significance. The appeal court’s duty is now limited to a review of that decision, and it may only interfere in the quite limited circumstances set out in CPR r.52.11(3).
32. The first ground for interference speaks for itself. The epithet “wrong” is to be applied to the substance of the decision made by the lower court. If the appeal is against the exercise of a discretion by the lower court, the decision of the House of Lords in G v. G (Minors: Custody Appeal)  1 WLR 647 warrants attention. In that case Lord Fraser of Tullybelton said, at p.652:
“Certainly it would not be useful to inquire whether different shades of meaning are intended to be conveyed by words such as ‘blatant error’ used by the President in the present case, and words such as ‘clearly wrong’, or simply ‘wrong’ used by other judges in other cases. All these various expressions were used in order to emphasise the point that the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which reasonable disagreement is possible.”
33. So far as the second ground for interference is concerned, it must be noted that the appeal court only has power to interfere if the procedural or other irregularity which it has detected in the proceedings in the lower court was a serious one, and that this irregularity caused the decision of the lower court to be an unjust decision.”
“The general rule set out in CPR Pt 52 provides that every appeal court has all the powers of the lower court: CPR r.52.10(1). It also has power to affirm, set aside or vary any order or judgment made or given by the lower court, to refer any claim or issue for determination by the lower court, to order a new trial or hearing or to make a costs order: CPR r.52.10(2). It may exercise its powers in relation to the whole or part of an order of the lower court: CPR r.52.10(4). In other words every appeal court, whether a circuit judge or a High Court judge or the Court of Appeal, has been expressly given the same powers in relation to appeals governed by CPR Pt 52. ....”
“.... In future the decision of the “first instance” judge in what used to be called an “interlocutory appeal” will assume a much greater importance than it ever did in the days when the judge in chambers conducted a complete rehearing, with an entirely fresh discretion to exercise. And the decision of the “appeal court”, whether a circuit judge or a High Court judge, is in most cases now likely to be final. These changes will compel litigants and their advisers to pay even greater attention to the need to prepare their cases with appropriate care, because they may find it much more difficult to extricate themselves from the consequences of an ill-prepared case before a judge at first instance in a lower court.”
“There was some debate before us as to what criteria should be used to decide that question. However for my part I do not think that it is desirable to fetter the wide discretion which Rule 52.11(1)(b) gives to the court. As I read the rule, it contemplates that in the ordinary case the appeal will be by way of review, but provides for the court to hold a rehearing if it “considers that in the circumstances of the individual [appeal] it would be in the interests of justice” to do so. Since the circumstances of individual cases may be almost infinitely variable, it is not in my judgment appropriate to lay down criteria to be satisfied before the appeal court holds a rehearing. All will depend on the particular circumstances of the case.”
“13. Thus a review of an exercise of discretion is different in principle from a rehearing, at any rate if the rehearing is (as Brooke LJ put it) a rehearing in the fullest sense of the word, as occurred under the old RSC Order 58, rule 1. It seems to me that CPR Rule 52.11(1) empowers the appeal court to hold a rehearing of that kind if the justice of the particular case requires. It may be that the nature of the rehearing which is appropriate will itself depend upon the particular circumstances; so that there may be a difference between an appeal from a decision of this kind, involving an exercise of discretion, and an appeal after a trial of an action. It is not, however, necessary to explore that possibility further in this case.
14. On a review of a decision like that of Master Eyre which involved the exercise of a discretion, the appeal court, subject to one proviso, is limited to considering whether he took account of irrelevant considerations, or failed to take account of relevant considerations, or whether he was wrong in the sense described by Lord Fraser in G v. G ....
15. The proviso is that where the appeal court receives evidence on a review (as it may do under Rule 52.11(2)) the review will take account of that evidence in deciding whether the exercise of the discretion by the court below was flawed. Such a review is very different from the kind of rehearing envisaged by Brooke LJ, in which the appeal court is exercising its own discretion and, because of the “generous ambit within which a reasonable disagreement is possible”, might well legitimately arrive at a different conclusion from the Master or judge in the court below.
16. I should perhaps add that now that an appeal from a master will, for the most part, be a review and not a rehearing, it is important that the master should give reasons for his decision – which may be short and concise, but should be sufficient to enable the appeal court to know by what process of reasoning he reached his conclusion.”
“78. I agree that the circumstances of an individual case are infinitely variable, and that it is not therefore appropriate to lay down fixed criteria that are to be satisfied before the appeal court holds a rehearing. Nevertheless, the instant case has shown that it may be difficult to determine whether a particular appeal should be by way of review or rehearing. For that reason it may be helpful to make a few comments on that issue.
79. The starting point is that, as Brooke LJ said in [Tanfern], the general rule is that every appeal from a lower court will be limited to a review of the decision of that court. It is for the party who wishes the appeal to be by way of rehearing to persuade the appeal court to adopt that course; viz. “every appeal will be limited to a review of the decision of the lower court unless ....” (CPR r.52.11(2)).
80. There must, however, be some feature of the case that unusually makes it unjust for the appeal to be limited to one of review. The fact that the appellant wishes to rely on evidence that was not before the lower court is not often likely by itself to be a sufficient reason for holding a rehearing rather than a review. That is because the power given by CPR r.52.11(2) to receive such evidence is exercisable whether the appeal is by way of rehearing or review.
82. But there may be cases where it is difficult or impossible to decide on appeal justly without a rehearing; for example, if the judgment of the lower court is so inadequately reasoned that it is not possible for the appeal court to determine the appeal justly without a rehearing; or if there was a serious procedural irregularity in the court below so that, for example, the appellant was prevented from developing his case properly. But where the decision of the lower court is adequately reasoned and there has been no such procedural irregularity, it should usually be possible for the appeal court to determine the appeal by review and not rehearing.”
1. The general rule is that appeals at all levels will be by way of review of the decision of the lower court.
2. A decision to hold a rehearing will only be justified where the appeal court considers that in the circumstances of the individual appeal it is in the interests of justice to do so.
3. It is undesirable to attempt to formulate criteria to be applied by the appeal court in deciding whether to hold a rehearing. There are two main reasons for this. The first reason is that the decision to hold a rehearing must inevitably rest on the circumstances of the particular appeal. The second reason is that any attempt to formulate such criteria would in effect be to rewrite the rule in more specific terms, thereby restricting the flexibility which is inherent in the general terms in which the rule is framed.
4. In a case involving some procedural or other irregularity in the lower court it will be material for the appeal court, when considering whether to hold a rehearing, to have regard to the fact that an appeal will be allowed where the decision of the lower court is rendered “unjust because of serious procedural or other irregularity” (see CPR r.52.11(3)(b)). Thus, where in such a case the decision of the lower court was made in the exercise of its discretion, the appeal court will be free to exercise the discretion afresh, without the need to hold a rehearing. However, what weight (if any) this factor may have will depend on the circumstances of the particular case.
5. The word “will” in the opening words of CPR r.52.11(3) (“The appeal court will allow ....” (my emphasis)) throws no light on the approach to be adopted in deciding whether to hold a rehearing under CPR 52.11(1)(b). In context, the word “will” in CPR r.52.11(3) does not purport to impose some mandatory duty on the appeal court – any more than does the word “will” in the opening words of CPR 52.11(1) (“Every appeal will be limited to a review ....” (my emphasis)) or the word “will” in the provision in CPR 52.11(2) that unless it orders otherwise the appeal court “will” not receive oral evidence or evidence which was not before the lower court. It is, after all, hardly necessary to impose a mandatory duty on an appeal court to allow an appeal against a decision of a lower court which is either wrong or unjust because of some irregularity. CPR r.52.11(3) simply makes clear when an appeal “will” be allowed, just as CPR 52.11(1) makes clear how appeals “will” henceforth proceed and CPR 52.11(2) makes clear what evidence the appeal court “will” receive unless it orders otherwise. That is not to say that the word “will” when used in other contexts may not import an imperative: my observations as to the meaning the word “will” are confined to CPR r.52.11.
“It is accepted (at least by inference) by Mr Hamblen [counsel for the claimants] that there has been a failure by the claimant to comply with any rule, Practice Direction of Court order, in the sense that the case did not come before a Judge either at a hearing or on paper during the period April 26, 1999 to April 25, 2000. In my view, Mr Hamblen was absolutely right to make that concession because it is clear to my mind that the intent of paragraph 19.1 of the Practice Direction to Part 51 was to ensure that all cases that were alive and kicking should go before a Court during that period under the new CPR regime.”
“.... would in effect constitute a sanction in the form of a strike-out”.
“i) The application must be determined by reference to the overriding objective in CPR r.1.1.
ii) An automatic stay under CPR PD 51.19 is a sanction within the meaning of CPR r.3.9; and accordingly the court must consider all the circumstances including the matters listed in CPR r.3.9(1)(a)-(i).
iii) It is for the parties seeking to set aside the automatic stay under CPR PD 51.19 to show that it is just and proportionate to do so, see .... BCCI v. Bugshan.
108. I turn now to the substantive issue raised by Mrs Audergon’s appeal against the Master’s decision; and for reasons already explained I do so on the footing that the function of the appeal court in considering that appeal is limited to that of reviewing the Master’s decision.
Lord Justice Tuckey :
Lord Justice Pill :
1. The appeal against the order of Rimer J made on 8 March 2001 to be allowed, and the said order be discharged save that paragraphs 1, 2, 26, 28 and 29 of the order do stand.
2. The order of Chief Master Winegarten dated 10 July 2000 be restored and varied as follows:
(1) in paragraph (1) thereof there be added the words "and the action is struck out"
(2) in paragraph (2) thereof the word "motion" be substituted by the word "action" and after the word "action" there be inserted the words "including the costs of the applications dated 19 April 2000 and 4 July 2000".
3. The claimant shall pay the defendant's costs here and before Rimer J (without prejudice to the costs ordered to be paid by the 3rd defendant to the claimant in accordance with paragraph 26 of the Order of Rimer J made on 8 March 2001), such costs to be the subject of a detailed assessment if not agreed.
4. In respect of the costs incurred during the period in which the claimant was in receipt of Legal Aid, the determination of the claimant's liability for such costs as an assisted person pursuant to section 17 Of the Legal Aid Act 1988 shall be postponed, save that the 3rd defendant be permitted to set off any such costs against his liability under paragraph 26 of the Order of Rimer J dated 8 March 2001.
5. There be a Legal Aid Assessment of the claimant's costs.
6. Permission to appeal to the House of Lords is refused.