Master of the Rolls’ Warning to Appellants
The Master of the Rolls declared that the Court of Appeal had an inherent jurisdiction either to hear an appeal in the absence of one party or to dismiss an appeal when the appellant failed to appear for a substantive hearing: Leave.EU Group Ltd & Anor v The Information Commissioner [2022] EWCA Civ 109: Sir Geoffrey Vos MR, Lewison, Asplin LJJ
In the present case Leave.EU, a corporate appellant, failed to attend the hearing at the time and place listed, by counsel, solicitor or in person. It appeared that following leave to appeal granted by the Upper Tribunal, Mr Arron Banks, the owner of both appellant companies sold them to a third party purchaser.
Substantive grounds of appeal and skeleton arguments in support of the appeal were filed, although shortly before the hearing date solicitors for Leave.EU came off the record. The court contacted the sole director of Leave.EU but there was no response.
The issues in the appeal were 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 had been given permission to argue its three grounds of appeal by the expert members of the Upper Tribunal who had themselves decided the appeal from the First Tier Tribunal.
The Court of Appeal considered it undesirable in the circumstances of the case to try to decide such important questions at that level without full oral argument.
It had the benefit of high quality skeleton arguments but it was extremely useful for the court in an appeal of such complexity to hear oral argument from both sides.
That was particularly so when important legal issues were in play which may affect many others in society. Cases of this kind did not reach the Court of Appeal often.
Although that might in itself make it attractive for the court to reach a substantive decision, it meant that the court 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.
An adjournment was not appropriate.
Firstly, Leave.EU made no such application. Secondly, the time of the Court of Appeal was at a premium and interests of other court users had to be considered. Parties could not 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 was no exception to that principle. Fourthly, Leave.EU remained in existence even though its activities had been reduced. There was no reason to suppose that the sole director would not have been capable of attending or instructing lawyers had they wished to proceed with the appeal.
It was only reasonable for the court to take non-attendance as an indication that Leave.EU did not wish to proceed or intend to proceed with its appeal.
Exercising the inherent jurisdiction of the court and rule 8(3)(b) and CPR part 52.20, the appeal of Leave.EU was unanimously dismissed.
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