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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 >> Benson v Richards [2002] EWCA Civ 1276 (5 September 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1276.html Cite as: [2002] EWCA Civ 1276

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		Neutral Citation Number: [2002] EWCA Civ 1276
		B2/2002/1782

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL CIVIL DIVISION
ON APPEAL FROM TELFORD COUNTY COURT
(Her Honour Judge Alton)

		Royal Courts of Justice Strand London WC2
		5th September 2002

B e f o r e :

LORD JUSTICE PETER GIBSON
LORD JUSTICE BROOKE
LORD JUSTICE TUCKEY
____________________

	ANTHONY FRANCIS RIOU BENSON	Claimant/Respondent
	-v-
	SAMANTHA JANE RICHARDS	Defendant/Appellant

____________________

MR N BARD (Instructed by Geraint Jones & Co, 44 Broad Street, Newtown, Powys SY16 2AU) appeared on behalf of the Appellant.
MISS M MACDONALD (Instructed by Gabb & Co, 1 Alton Court Mews, Broad Street, Leominster HR6 8BS) appeared on behalf of the Respondent.
____________________

HTML VERSION OF JUDGMENT
(AS APPROVED BY THE COURT)
____________________

Crown Copyright ©

Thursday, 5th September 2002

J U D G M E N T

1. LORD JUSTICE PETER GIBSON: The defendant, Samantha Richards, seeks a further adjournment of a hearing of her appeal from the orders made by Her Honour Judge Alton in the Telford County Court on 10th July and 1st August 2002. By the first of those orders the judge found the defendant to have acted in persistent and deliberate contempt of the order of Mr Recorder Oliver Jones QC on 8th May 1998 requiring her to remove a fence which the Recorder found had been erected by the defendant on the land of the claimant, Anthony Benson. By the second order the judge sentenced the defendant to three months’ imprisonment . She had solicitors and counsel at the hearing on 1st August. A notice of appeal prepared by those legal advisers was lodged on her behalf on 15th August and a hearing date for the appeal was fixed for 29th August. However, new solicitors were instructed only on 19th August . They asked for an adjournment to prepare for the appeal and the hearing date was put back for one week until today.

2. On 29th August an application was made by counsel for the defendant for her to be released on bail pending the appeal. That was rejected on that day by this court. We were told then that another counsel was to be instructed at the weekend to appear for the defendant on the appeal. We gave an indication to the prison governor that we considered it important that the defendant have a proper opportunity to give instructions to her solicitor.

3. A meeting between the solicitor and the defendant was arranged for 3rd September, but the defendant cancelled the meeting on the ground that she was unwell. We were told at last week's hearing that the solicitor considered that there was a conflict of interest between the defendant and her mother, Mrs Richards, who has taken a leading role in the dispute from the start. Mrs Richards has a power of attorney from the defendant, but the solicitor was unwilling to take instructions from Mrs Richard on behalf of the defendant without confirmation from the defendant that those instructions were truly the wishes of the defendant.

4. By letter dated 3rd September the Civil Appeals Office was informed that the solicitors could not, for professional and ethical reasons, continue to act in this case and could not brief counsel for the appeal. But they were prepared to instruct counsel to ask for an adjournment and Mr Bard has appeared today only to make that application . We are told that the defendant is not well enough to instruct solicitors. She was involved in an accident and suffers from back pain and that is made worse by the anxiety of court appearances. The defendant is not present today because, according to a prison doctor who visited her yesterday, she is not fit enough to travel today “due to reasons of acute distress and emotional turmoil”. The defendant is due to be released on 13th September after serving part of her three months’ sentence. Mr Bard asked for an adjournment on the basis that the defendant wishes to instruct fresh solicitors and to amend her notice of appeal. Mr Bard in his application to us has pointed to her personal difficulties, such as that she is in prison and is suffering pain and depression. He also drew attention to the fact that there are further procedural matters to be dealt with before the appeal can be properly presented. There is no suitable bundle provided for each member of the court . He further draws attention to the fact that transcripts of the hearing before the judge, apparently numbering 400 pages, have only just been received. He has asked for time so that a ground of appeal which is based on that evidence can be prepared. He refers to the intention to amend the notice of appeal . He has also referred to the fact that the claimant has indicated an intention to serve a Respondent's Notice . We have been told that has now been filed, though not yet served, on the defendant. But that can be done immediately. Mr Bard submits that, in all the circumstances, it would be unfair and prejudicial to proceed with the appeal today. Hence his application that there should be an adjournment of at least 28 days.

5. The claimant, for whom Mrs McDonald appears, opposes the application. She submits that the difficulty arises not from the defendant's ill-health but from the defendant's delay in obtaining legal representation and in providing her legal representatives with proper instructions. The claimant's concern is that any fresh application to commit could not in practice be proceeded with while the appeal remains pending. She says that an adjournment will add to the already significant delays which have occurred and that it would prevent the claimant from seeking enforcement of an order made as long ago as May 1998. She further argues that the medical evidence is slight and does not relate to on a recognised medical condition. She says that if the court is minded to grant an adjournment for more than a few days it should be on terms. One term which she asks for is that a new deadline should be set for the removal of the fence . That, she says, would allow the claimant to apply for committal and for that application to be heard immediately after the appeal hearing. She has also urged us to impose stringent time limits for any amendments to the appeal documentation as well as for skeleton arguments.

6. I have considerable sympathy with the claimant, who is understandably anxious that this appeal should be resolved as soon as possible. The fence still remains standing, notwithstanding the passage of time since the Recorder's order directing its removal. The unsatisfactory position that the defendant is in today in relation to this appeal appears to me to be largely a product of her own conduct. As I have indicated, not less than two sets of solicitors have already been instructed on her behalf in succession, but each has had instructions withdrawn or has felt unable to continue to act for the defendant. But, having regard to the overriding objective and the requirement that cases must be dealt with justly, I fear that the appeal hearing cannot continue today. There is a real risk of injustice to the defendant if we were to go ahead with the appeal in her absence, and she has a medical certificate on which she can rely for being absent. Further, the papers before the court are simply not in a satisfactory condition for the appeal. The defendant is appealing against a sentence of imprisonment which is still continuing. In these circumstances, therefore, it seems to me inevitable that we will have to grant an adjournment.

7. We have ascertained that the earliest date when a division of this court might be able to accommodate the hearing of this appeal is 2nd October, and I would adjourn the appeal hearing until that date. That gives the defendant more than two and a half weeks after she is due to be released from prison to give proper instructions to solicitors and to prepare for the appeal. But I would hope and expect that, even before her release, preliminary work would commence so that a firm of solicitors who might be prepared to act will have been identified and all the relevant documents gathered to present to them. I would not impose a condition at this stage requiring the removal of the fence by a stated deadline. I understand the claimant's concern but I think that such an application, if it is to be made, should be made to this court hearing the appeal on 2nd October and that matter can no doubt be dealt with, if appropriate, immediately after the determination of the appeal. I would be minded to require that all documents needed for the appeal hearing be filed and served by 4.00 p.m. on 24th September. Such documents will include any application to amend the notice of appeal and the skeleton argument for the defendant as well as the appropriate bundle of documents. I would require that the claimant file and serve his skeleton argument in response within 48 hours of that deadline.

8. I would stress that the appeal must be heard on 2nd October. It is not tolerable for an appellant who has filed a notice of appeal to hire and sack solicitors in succession and to rely on new solicitors’ unpreparedness to put off the hearing date of the appeal. Justice to the claimant requires that there be resolution of this appeal as soon as possible. For the reasons which I have indicated, unhappily the earliest the matter can be dealt with is 2nd October. I would expect the hearing to go ahead on that date even if it be the case that the defendant is then acting in person.

9. Those are the orders which I would propose making on this application.

10. LORD JUSTICE BROOKE: I agree.

11. LORD JUSTICE TUCKEY: I also agree.

Order: As above. We direct that the costs of this application be paid by the defendant.