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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 >> Brooks v Middleton [2001] EWCA Civ 899 (1 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/899.html Cite as: [2001] EWCA Civ 899

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO REINSTATE WITH PERMISSION TO APPEAL,
EXTENSION OF TIME AND DISCLOSURE TO FOLLOW IF GRANTED

		Royal Courts of Justice Strand London WC2 Tuesday, 1st May 2001

1. SIR PHILIP OTTON: This is a somewhat unusual case in that the would-be appellant makes an application out of time for leave to renew an application to the Court of Appeal for leave to appeal against the judgment of the lower court.
2. It is not necessary to go into the full history of these matters. The litigation centres around the break down of the relationship between the parties and the disposition of the home which they shared before the break up occurred. Suffice it to say, the matter has come before both the High Court and the County Court on a number of occasions.
3. The decision in question was made on 15th March 2000. The mere statement of the date indicates the difficulties which the applicant faces. It is true that on 19th March he made an application to the judge for leave to appeal which was dismissed. Thereafter he lost the resources of his legal advisers. On 26th July an application was lodged with the Court of Appeal for leave to appeal against the refusal of the County Court judge and leave to appeal the decision which was under challenge. What happened thereafter is a matter of some disquiet. Various applications were made by the solicitors (who had come back on the scene) to extend the time for the lodging of the bundles in support of an application for leave to renew the application. I, for my part, am very sceptical whether it was necessary for bundles to be lodged. For the purpose of this limited application it would have been sufficient to appear before the registrar with an affidavit setting out the circumstances which would have explained the delay and the purported merits of the appeal itself.
4. Mr Craven, who has appeared on behalf of Mr Middleton, submits that this court has jurisdiction under Rule 3.1 (7) to make the order which he seeks. The rule provides that -

"A power of the court under these Rules to make an order includes a power to vary or revoke the order."

5. That, he says, extends not merely to when the order was made which purported to finalise this litigation but also the order made by the judge on 19th March and when the matter came before the Deputy Registrar when she dismissed the application. For my part, I would accept that proposition of law in principle. However, it should only be exercised when the interests of justice require (see Stuart v Engel [2000] 1 WLR at 2268).
6. Where do the interests of justice lie in this case? The history of litigation has been tortuous and very unsatisfactory. It is quite clear from the documents which I have seen that Mr Middleton has prevaricated. He has blown hot and cold on all proposals he has tried to come up with to dispose of this matter both before and after the litigation. Litigation, in the interests of justice, must be conducted with reasonable expedition, both at first instance and at the appellate stage. So far as the appellate process is concerned it has been obvious that this criterion has not been observed. A great deal of time has elapsed since the original decision given on 15th March 2000. We are now looking at the case over a year later. It may be that there is still some confusion about the figures before the Court below and there was an argument that the precise form of the order was obtained by mistake and that the figures should have been worked out more favourably to Mr Middleton. There is also the point which might have been taken at the original hearing that allowance should have been made for rent for continued occupation of the premises by one of the parties. All these matters are now stale. Both parties are entitled to certainty.
7. If this application were to be allowed we would have to look at the merit of the application and if the matter went to the Court of Appeal on a full hearing there would undoubtedly be further substantial delay.
8. I am satisfied that the circumstances of this case and the manner in which the litigation has been conducted since the original order was made are such that it is not in the interests of justice to allow this application. I would therefore dismiss it.
9. LORD JUSTICE LATHAM: I agree.
Order: Application dismissed