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 THE HIGH COURT
CHANCERY DIVISION
(Mr Justice Lightman)

		Royal Courts of Justice Strand London, WC2 Tuesday, 10 December 2002

1. LORD JUSTICE KAY: The court has before it two applications made by Mr and Mrs Tracy that relate to a previous decision of Simon Brown LJ made in their absence on 10 July 2002. The first issue which has arisen today is whether the court should adjourn the hearing of these applications because Mr and Mrs Tracy are not present and are not represented. A written application was made on their behalf by Mrs Tracy which was placed before me prior to the hearing. Having considered that application, I refused it on 2 December 2002.
2. Mrs Tracy has since written again to the court, making a number of points. She first complains that the question of an adjournment was referred to Simon Brown LJ as the presiding judge of the constitution before which the case was to come, and she believes that the decision was one made by Simon Brown LJ himself. That contention is entirely wrong. It was my decision and my decision alone, in which Simon Brown LJ played no part. Where, as in this case, a matter has been heard by a single Lord Justice and an application is made to reinstate the application, it is normal practice for that matter to be referred back to the Lord Justice who is familiar with the matter. When that occurred in this case, Simon Brown LJ immediately appreciated that since complaint was made about his conduct of the hearing, the fresh application should be dealt with by a different judge. I was therefore asked to deal with these applications on my own. Once a case has been allocated to a specific judge, it is for that judge to determine any application to adjourn in those proceedings. Thus I, acting alone, considered the application and refused it. As it transpires, Simon Brown LJ is not a member of the constitution of this court during this week, and I am the presiding Lord Justice in this court for this week.
3. Next Mrs Tracy complains that I have not read the correspondence. In this regard she is quite wrong. I read all the papers that were placed before me and reached my conclusion upon them.
4. I shall treat her letter as a fresh application to adjourn the hearings. The basis of that application is that Mr Tracy is unfit to attend court and that Mrs Tracy feels unable to leave her husband because she believes that it would be harmful to his health for her to leave him so that she could attend court.
5. Mr Tracy undoubtedly had a very serious operation in 2001. The medical report from his doctor, Dr Vaughan, dated 10 June 2002, made clear that he was unfit to travel and would be, as the doctor put it,"over the few months". A further report dated 19 August 2002 said that he was very dependent on his wife and "worries if she is not with him for even a short space of time". The doctor said, "Mrs Tracy is unable to leave him". In terms of how long this situation might continue, it was said to be likely to last "into the foreseeable future". Thus, on the evidence, the doctor is unable to predict when it is foreseeable that the situation might change and permit one or other of Mr and Mrs Tracy to attend court.
6. This case relates to the costs of a hearing in the High Court over ten years ago on 20 July 1992. It is, therefore, one in which final resolution ought to be achieved as soon as possible. Mrs Tracy in her letter suggests that if the case were to be adjourned until the Easter term it could be heard then. However, there is no medical evidence to suggest that a change is likely in the situation at or about that date and it is simply a view expressed by Mrs Tracy, unaided by any medical evidence, that the position might be different then.
7. In my reasons for refusing an adjournment, I referred to the interests of the defendant. Mrs Tracy takes me to task for this and suggests that the defendant had no interest in these proceedings because she is legally aided and does not pay any contribution to her own costs. That simply misses the point. It matters not who has funded the defendant. Resolution of the costs issues is of importance whether the defendant personally was liable to be paid them or whether the legal aid authorities have funded her under the regulations.
8. I have no doubt that it is right that this matter should proceed at this stage and made clear in the written reasons that I gave in dealing with her first letter that it was open to Mrs Tracy either to make arrangements for someone to look after her husband or for representation at these proceedings. She has not followed either of those courses and therefore it seems to me that this matter should now continue.
9. The complaint that she makes is effectively the same complaint about Simon Brown LJ that she has made in relation to my refusing her written application for an adjournment. She complains that the matter proceeded without an oral hearing and that therefore the case ought to be reinstated so that she can make representations to the court.
10. The case was listed as an application for permission to appeal before Simon Brown LJ. Under the rules, a single Lord Justice is entitled to deal with a hearing in relation to such matters. The hearing took place in her absence because, again at that stage, she was refused an adjournment but did not attend the hearing. Her complaint is therefore that there was no oral hearing. She contends that she has a right to attend and be heard. The right of a party is to have the matter listed at a time which is notified to them so that they have the opportunity to attend and make oral representations to the court. Once that has taken place, there has been a valid hearing of the matter. Simon Brown LJ considered her application for an adjournment. He refused it. He then went on to deal with the merits of the application and there is no basis upon which his decision can be reopened simply because the applicant was not present and made no oral representations. In those circumstances I refuse her application to reinstate, there being no proper basis upon which it could be granted.
11. The second application that she makes today relates to a decision of Deputy Master Joseph by which he refused to list for hearing before two Lord Justices of Appeal her application in relation to the decision of Simon Brown LJ. She contends that she has a right to such a hearing and that the deputy master was wrong to preclude her from that matter. She places reliance upon CPR 52.16, paragraphs (5) and (6):

"(5) A party may request any decision of a court officer to be reviewed by the Court of Appeal.

(6) At the request of a party, a hearing will be held to reconsider a decision of --

(a) a single judge; or

(b) a court officer,

made without a hearing."

12. The application before Simon Brown LJ was made with a hearing. The case was listed, as already made clear, the judge was available and prepared to hear any representations that were made on her behalf. Therefore, once he had done that, the matter was concluded; and therefore, in my judgment, the deputy master was quite right to refuse to re-list it. If an application was to be made, then it was an application that could be brought, but that required the payment of a separate fee. The applicant complains that she in effect has to pay court fees in respect of the same matter twice. Each of the matters required a separate fee and I can see nothing wrong with the directions in this regard given by the deputy master.
13. For these reasons it seems to me quite clear that the decision of Simon Brown LJ is binding upon the applicant. Her application for permission to appeal has been refused. That is the end of the matter and she has no right to a further hearing in respect of the matter. She contends in her letter that even if this application is refused she has some right to go on making further applications. That simply is not right. In those circumstances, each of these two applications is refused.

ORDER: Applications refused. A copy of the transcript to be provided to the applicant at public expense.

(Order does not form part of the approved judgment)