George Woodhead represents successful landlord in L & T appeal

The appeal was a brutal reminder for all practitioners seeking to negotiate outside court.  Having refused L’s application to adjourn the trial at the beginning of the day (L not having served any witness evidence on time or at all), the DJ allowed the parties some time out of court.  Negotiations began and continued with progress and optimism until about 4.15pm.  The parties were unable to agree about 3 words of a lengthy Schedule to a Tomlin Order.  Counsel for L at first instance told the DJ that the order could not be agreed.  “Frustrated”, the DJ decided to make an order of the court in terms similar to those contained within the working draft Tomlin Order which he had been shown.  No evidence or submissions had been heard on the merits of the case itself although the report of an environmental health consultant (acting as SJE) was unequivocal in its conclusions.

In allowing the appeal, HHJ Bailey held that whilst it did seem to him that L was seeking to achieve an adjournment “through the back door”, it was the responsibility of counsel and the court to realise that a trial might be in jeopardy if an agreement is not achieved and appreciate the risk of negotiations taking up precious trial time.  In that sense, T’s counsel had “some responsibility” for the events of that day.  Ultimately, HHJ Bailey described the making of an order without hearing evidence or submissions as “one of the most serious procedural irregularities”.  The case of Dunbar Assets Plc v Dorcas Holdings Ltd. [2013] EWCA Civ 864 was relied upon by L in support of the proposition that in cases of grave procedural irregularity such as this the absence of consequences does not displace the injustice constituted by procedural irregularity.

George Woodhead acted for the successful landlord in the appeal (not at first instance) and was instructed by Stokes Solicitors LLP