England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD COUNTY COURT AND FAMILY COURT
HER HONOUR JUDGE MELLISSA CLARKE
3YS16698

		Royal Courts of Justice Strand, London, WC2A 2LL
		1/11/2018

Lady Justice Rafferty :

1. This is a short form judgment of the court which with the encouragement of Sir Terence Etherton MR judges of the Court of Appeal may in future use for appellate decisions in appropriate cases. It is used here because this appeal raises no issue of law, precedent or other matters of general significance and the relevant facts and any documentary material are set out in the County Court judgement under appeal, read with the challenged judgement of the District Judge, and are not in dispute on the appeal.
2. The appeal is dismissed.
3. Two questions arise. First, can the Appellant show this court medical evidence which she provided to the court below such as should have merited the grant of an adjournment? Second, if refused on medical grounds, should the County Court have proceeded to hear the appeal?
4. HHJ Wright sitting in Watford on 4th May 2017 gave permission to appeal. The Appellant was present and thus heard the court say that the appeal was to be heard in the County Court in Oxford. She also received the written Notice of Hearing dated 19 May 2017 which named Oxford for the hearing of the appeal on 4th July 2017.
5. On 14th June 2017 she wrote to the court at Watford asking that the case be heard at Watford or in London and, she says, enclosing a letter from her GP. She also wrote that it would be helpful were the hearing fixed for the end of July to give her time to prepare her case. That letter is stamped as received at Oxford on 28th June 2017.
6. On 3rd July 2017 she wrote to the court at Oxford repeating her request for an adjournment and, she claims, enclosing the same letter from her GP. In this letter she wrote "Due to ill-health and as I represent myself having no money to pay solicitor/counsel I am advised not to travel on my own".
7. On 3rd July 2017 she sent two emails, at 0739 to the court at Oxford and at 07 41 to the court at Watford. In each she repeated what she had already said about her wish that the matter be heard in Watford or in London and what she said were her difficulties. She asserted that she had that same day 3rd July sent by special post a letter and documents which she hoped would reach Oxford before one o'clock on 3rd July for a hearing the next day 4th July.
8. In the email to Watford she explained that as she had had no reply to her letter of 14^th June she assumed that her preference had prevailed and that the appeal would not be heard at Oxford.
9. HHJ Clarke had sight of the two emails of 3rd July which alerted her to the Appellant's claim to have sent the letter of 14th June 2017 and one from the GP. Neither was in the court file and neither was before Judge Clarke. The judge concluded that the Appellant was not present, had made no application to adjourn, had sent no one to represent her, and supplied no medical evidence to explain why she was unable to travel to Oxford. The judge described sending an email 24 hours before a hearing and simply not turning up as insufficient. She dismissed the appeal.
10. Ground One criticises the judge for failing to consider an adjournment, her conclusion that there had been no or no timeous request for one said to be in error as the letters of 14th June 2017 and from the GP make plain. Ground Two criticises the judge for insufficient consideration of the overriding objective and the inadequate weight she gave to the prejudice to the Appellant were she required to travel alone to Oxford. Ground Three complains that the judge failed properly to exercise discretion in favour of an adjournment. Ground Four complains that the judge erred in failing to direct that the appeal be heard locally to the Appellant.
11. All the Grounds may be conveniently taken together.
12. The Appellant faces insuperable difficulties in advancing this appeal. Her 14^th June letter did not seek an adjournment but a change of venue. The GP's letter dated 2^nd June 2017 addressed 'To whom it may concern' taken at its highest for her reads in part:

"She very recently presented to me with symptoms of depression which included suicidal ideation. I have grave concerns for her health and would urge that all professionals involved reduce any burden be it emotional or physical or financial strain on Mrs Alexander. I am very happy to help Mrs Alexander in any way I can"

13. These documents would have been little or no use to the Judge even if seen and accepted as an application. The GP's letter comes nowhere near providing evidence which identifies the relevant medical condition with particularity and sets out features of it which preclude participation in the Appeal process. Nor does it include a prognosis or give the court confidence that the opinion expressed is independent expert evidence.
14. The 1st July 2017 letter, sent too late for any realistic hope of reaching a Judge on Tuesday 4^th July, mentions her ill-health but the apparently enclosed GPs letter is a duplicate of that to which we have already referred and consequently has the same deficiencies. The two emails and the letter sent on 3^rd July 2017 raise her poor health, difficulty in funding representation and her assumption that the hearing would not be at Oxford. They do no more than assert the Appellant's position without providing an evidential basis for what she says she sought.
15. The Judge had before her no application to adjourn, simply a request for a different venue. Even if the Court ought to have treated the correspondence as an application and even if the correspondence did in fact seek an adjournment, no proper grounds for an adjournment were provided. As the Judge said

"'Sending an email 24 hours beforehand and simply not turning up is not sufficient'.

16. True, there is the 14^th June 2017 letter but the difficulties the Appellant faces in that regard we have already considered.
17. That is an end to Grounds One and Two.
18. As to Ground Three, that the Judge failed or failed properly to exercise her discretion in favour of adjournment, this was a case management decision. Consequently and uncontroversially she enjoyed a wide discretion and there is a high threshold for the Appellant to cross if her appeal is to succeed, which she does not. HHJ Clarke took into account the absence of a proper application; the responsibility on the Appellant to attend, be represented or make a timeous application (even if not in proper form); the absence of medical evidence to establish why she could not travel to Oxford, and the late timing of the emails.
19. Ground Four, complaining that the Judge erred in failing to direct that the appeal be heard at a Court local to the Appellant, is vulnerable to similar difficulties. The Judge did not have a proper application before her (and would not have done even if she had seen the 14^th June 2017 letter), nor any medical evidence in the terms we have set out.
20. No Ground succeeds and this appeal is dismissed.