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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hodge Jones & Allen (A Firm) v McLaughlin [2013] EWCA Civ 1898 (10 December 2013)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1898.html
Cite as: [2013] EWCA Civ 1898
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ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR MICHAEL HARVEY QC)
Strand London, WC2A 2LL |
||
B e f o r e :
Vice President of the Court of Appeal (Criminal Division)
LORD JUSTICE SULLIVAN
MR JUSTICE ARNOLD
____________________
| HODGE JONES & ALLEN (A FIRM) | Respondent/Claimant | |
| -v- | ||
| EILEEN McLAUGHLIN | Appellant/Defendant |
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(DAR Transcript of
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MR MARTYN BERKIN (instructed under the Direct Access Scheme) appeared on behalf of the Appellant
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- MR JUSTICE ARNOLD: The court has before it an application for an adjournment of this appeal which arises in the following circumstances. The appellant, now Ms O'Shea, previously known as Mrs McLaughlin, was a client of the respondent firm of solicitors Hodge Jones & Allen. The respondent brought a claim against her for £24,835.16 for outstanding fees. She counterclaimed for alleged professional negligence.
- The proceedings were commenced sometime in 2009. They came to trial before Mr Michael Harvey QC, sitting as a deputy High Court judge, in May 2011. The trial extended over some 17 days, finishing on 13 July 2011. The learned deputy judge reserved his judgment and delivered it in writing on 23 September 2011. In his judgment, which runs to some 323 paragraphs, he dealt in considerable detail with each of the points raised at the trial by the appellant.
- The appellant subsequently filed an appellant's notice raising some seven grounds of appeal. Sir Mark Waller granted permission to appeal on grounds 1 and 4 only on paper on 11 November 2011. He also directed that, if the appellant wished to renew her application for permission to appeal in relation to the other five grounds, then that should be done at the hearing of the appeal. Subsequently, the appellant did indeed give notice that she wished to renew her application for permission to appeal on the five grounds which Sir Mark Waller had refused permission in respect of.
- The next development to which I must refer is that on 15 May 2012 Richards LJ refused a request by the appellant for transcripts of the evidence at public expense. The matter was then listed for hearing before the court on 30 October 2012. In the event, the hearing was ineffective on that date and the matter was listed for directions. On that occasion, the question of transcripts was raised again. It was stated by the appellant through her counsel that she had requested transcripts of the proceedings from the well-known firm of transcribers Marten Walsh Cherer, and was awaiting an estimate. On that basis, the court made directions adjourning the hearing of the appeal to a date to be fixed not before three months after delivery of the transcripts by Marten Walsh Cherer. In addition to that, the parties were given permission to comment in writing on the transcripts delivered, to amend written submissions if necessary, and, in the case of the appellant, to amend her grounds of appeal. Furthermore, the appellant was given permission to draw down funds from any of her accounts at Lloyds TSB to pay Marten Walsh Cherer's invoices and to pay for the costs of representation. That order was necessary because the appellant is subject to a freezing order made some time ago. Finally, the appellant was given permission to file and serve a witness statement dealing with her non-attendance on the final day of trial.
- Notwithstanding those directions, the appellant applied by application notice dated 21 January 2013, it appears, seeking an order for inspection of the notes taken by the respondent at trial. That application was considered by Ward LJ on paper on 27 March 2013, when he dismissed the appellant's application and gave as his reason that inspection of the respondent's notes could take place only with the respondent's consent; it could not be ordered. He also commented:
- We are given to understand that there was subsequently a mediation on 13 June 2013, but unhappily it was unsuccessful.
- The next development which it is necessary to note is that the appellant duly lodged an appellant's bundle in time for the hearing in October 2012, but on 14 November 2013 she removed her bundle from the court, as we understand it to update it and to get it into order. She gave an undertaking on that occasion to return the bundle to court by 21 November 2013, but she did not do so. She was contacted several times by the Civil Appeals Office requesting the return of the bundle, but continued to fail to return it. Accordingly, Hallett LJ made a direction that the bundle should be returned at the latest by 3 pm last Friday, failing which the appeal might be struck out. The appellant did not return the bundle, however. As a result, the appeal cannot be heard today in any event.
- This morning counsel has appeared, instructed very much at the last moment by the appellant and acting pro bono on her behalf. We are grateful to him for appearing in those circumstances and doing his best for the appellant. He has sought to rely in support of his application for an adjournment upon the fact that even now the appellant has not obtained transcripts of the evidence given at trial, nor has she been able to inspect the notes made by the respondent.
- In relation to the transcripts, counsel relied upon the appellant's impecuniosity. So far as that is concerned, however, it has to be observed that the order made by the court on 30 October 2012 gave her permission to draw down funds from her accounts at Lloyds TSB. It may be the case that she did not have sufficient funds in those accounts (we do not have proper financial evidence before us), but nevertheless, if that is so, that cannot have been a recent development.
- Counsel also relied upon the failure of the respondent to provide inspection of their notes of evidence. That, however, was a matter dealt with by Ward LJ in his order of 27 March 2013 in which he made clear that inspection could not be ordered. The appellant has now known that for over six months.
- Finally, there is the matter of the missing bundle. Counsel relied upon the fact that the appellant's objective in taking away the appellant's bundle was in order to update it and get it in order. I have no difficulty in accepting that explanation. Nevertheless, the fact remains that the appellant undertook to return the bundle within a week. She did not do so. She was chased. She still did not do so, and then she failed to comply with the deadline set by my Lady.
- Reliance was also placed on the fact that the appellant has been suffering from medical difficulties. There is no proper medical evidence before the court, however, nor is there any suggestion that her medical difficulties are of recent origin, although we understand that she did encounter a particular problem yesterday.
- In all of those circumstances, the question is whether an adjournment would be justified. In my judgment, no sufficient grounds have been made out for an adjournment. This appeal has been pending for over two years now. The appellant has had ample opportunity to get the appeal in order and ready for hearing. She has not got the appeal in order and ready for hearing, and there is really no proper excuse for her failure in that regard. Furthermore, the court can have absolutely no confidence that, if an adjournment were to be granted, the appellant would be in a position to get the appeal ready for hearing within a short time frame.
- In all of those circumstances, I would refuse the application for an adjournment, even though it must follow that the consequence will be that the appellant's appeal is struck out.
- LADY JUSTICE HALLETT: I too agree. If I had any confidence that Ms O'Shea would be in a position to progress this appeal within a reasonable time, I might have been more sympathetic to Mr Berkin's application. But, for the reasons given by my Lord, I have no such confidence. Nothing whatsoever has been done to advance the appeal, not even the filing of a witness statement from the appellant herself in accordance with previous orders.
- This is the second occasion when the respondents have arrived at court understanding that the appeal was listed for hearing. They have been ready and willing to argue their side of the case. The first occasion was over a year ago. This is the second time on which the respondent has declared herself unready. She is still trying to argue issues that have been determined by the court months, if not years, ago. There are very heavy demands on the resources of the court, which mean we do not have the luxury of allowing litigants repeated adjournments on request. In our case management powers we are entitled to impose timetables and expect adherence to them. In any event, the respondents also have a right to a fair hearing within a reasonable time and to see a resolution of this appeal.
- In all the circumstances, much as one may sympathise with Ms O'Shea, who has undoubtedly suffered a number of personal difficulties, including by the sounds of it poor health, I too am driven to the conclusion that I have no option but to refuse the application, even if the consequences are, as my Lord has observed, the fact that this appeal must be dismissed.
"This case cries out for mediation. If the parties cannot agree to seek it then the appeal must be heard."
LORD JUSTICE SULLIVAN: I agree.