WHEN AN APPELLANT FAILS TO ATTEND THEIR APPEAL IN THE COURT OF APPEAL: “PARTIES CANNOT SIMPLY FAIL TO SHOW UP FOR A HEARING…”

In  Leave.EU Group Ltd & Anor v The Information Commissioner [2022] EWCA Civ 109 the Court of Appeal considered the appropriate step when an appellant failed to attend an appeal. The Master of the Rolls held that the Court had power to dismiss the appeal and it was appropriate, in this case, to do so.

 

“Parties cannot simply fail to show up for a hearing and then submit, after the event, that they should have been allowed an adjournment.”

THE CASE

The Court of Appeal was due to be hearing an appeal by the Leave.EU Group.  The appellants had solicitors and counsel representing them until shortly before the appeal, however they came off the record.  The Court of Appeal was satisfied that the appellants had notice of the hearing and had chosen no t attend.

 

THE COURT OF APPEAL’S DECISION

The Master of Rolls considered the court’s powers and the appropriate steps.

17. I have considered carefully the proper course that the court should adopt in the above circumstances.

 

    1. First, in my judgment, the Court of Appeal has the same powers as the UT under the provisions of Rules 8 and 38 of the 2008 Rules that I have mentioned. Secondly, I am satisfied that the Court of Appeal has an inherent jurisdiction either to hear an appeal in the absence of one party or to dismiss an appeal when the appellant fails to appear for a substantive hearing. It would make the operation of the Court of Appeal impossible if no such jurisdiction existed, and the Court must be in control of its own procedures in order to give effect to the overriding objective of enabling the court to deal with cases justly and at proportionate cost (CPR Part 1.1). Rule 8(3)(b) is in point here, because Leave.EU has failed to cooperate with the Court of Appeal to such an extent that it cannot deal with the proceedings fairly and justly. That rule is applied to the Court of Appeal, as I have said, by CPR Part 52.20(1). I shall now explain why the proceedings cannot be dealt with fairly and justly and cannot be adjourned.

 

    1. The issues in this appeal are, as I have explained, important and in some respects novel. A one-day hearing had been fixed before an appropriately qualified panel of the Court of Appeal for many months. Leave.EU was given permission to argue its three grounds of appeal by the expert members of the UT, who had themselves decided the appeal from the FTT.

 

    1. I do not think it would be either desirable or appropriate to comment on the substantive matters that would have been before the court. Suffice it to say that I take the view that it would have been undesirable in the circumstances of this case to try to decide such important questions at the level of the Court of Appeal without full oral argument. We have had the benefit of high quality skeleton arguments but it is extremely useful for the court in an appeal of this complexity to hear oral argument from both sides. That is particularly so when important legal issues are in play which may affect many others in society. We should take notice of the fact that cases of this kind do not reach the Court of Appeal often. That might in itself make it attractive for us to reach a substantive decision. But in my view, it means that we should be astute only to do so after hearing full argument. Hearing only from the respondent would not be sufficient, particularly where the decisions of the FTT and the UT reached the same conclusions as those for which the Information Commissioner advocated.

 

    1. I considered whether an adjournment would have been appropriate. In my judgment, it would not. First, Leave.EU made no such application. Secondly, the time of the Court of Appeal is at a premium and we have to consider the interests of other court users. Parties cannot simply fail to show up for a hearing and then submit, after the event, that they should have been allowed an adjournment. Thirdly, there must be finality in litigation and this case is no exception to that principle. Fourthly, Leave.EU remains in existence, even if we were told that its activities have reduced since the appeal was heard in the UT. I have no reason to suppose that Mr Jacobus Coetzee would not have been capable of attending or instructing lawyers to do so, had they wanted Leave.EU to proceed with its appeal. In the circumstances, it is only reasonable for the court to take non-attendance as an indication that Leave.EU does not wish to proceed or intend to proceed with its appeal.

 

  1. For the reasons I have given, I would exercise the inherent jurisdiction of the court and rule 8(3)(b) and CPR part 52.20 to dismiss Leave.EU’s appeal.