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The right of an applicant to be heard when making an application

In Frey & Ors v Labrouche [2012] EWCA Civ 881 the Court of Appeal gave important guidance on the right of a party to make oral submissions when making an application.

In the underlying proceedings before the Chancery Division of the High Court the Defendant made an application that the claim be struck out as an abuse of the Court's process. The basis of the application was, inter alia, that the subject matter of the claim had been or could have been litigated in previous proceedings in a different forum. At the start of the hearing of the Defendant's application the Judge indicated that, having read the papers, he was firmly of the view that the application would fail. He refused to hear oral submissions. Counsel for the Defendant urged the judge to reconsider and hear oral submissions, indicating that if he did  not then the Defendant would have no alternative but to appeal his decision. The judge refused and instead adjourned the matter to give written reasons as to why the application was being refused.

The Defendant duly appealed.  The Court of Appeal agreed that the Judge had dealt with the application unfairly. The Master of the Rolls, giving the judgment of the court, stated:-

"It is a fundamental feature of the English civil justice system, and indeed any civilised modern justice system, that a party should be allowed to bring his application to court, and make his case out to a judge. Of course, this principle is subject to some exceptions and limitations, which exist to ensure the proper administration of justice. Thus, the court may refuse to entertain argument from a party who is in contempt of court, a civil restraint order can fetter the right of access in the case of a person who has used the court process to harass others, and time limits are routinely imposed for hearings. However, even where a party is in contempt or is subject to a civil restraint order, the court will ensure that he is not prevented from making an application or submissions where it would be unjust to shut him out; and time limits are imposed simply to ensure that a party is not allowed an extravagant amount of time to the detriment of other court users."

The Court of Appeal allowed the appeal and remitted the matter back to the High Court with a direction that the application be heard by a different judge.

In passing judgment the Court of Appeal made it clear that there was nothing wrong in principle with a Judge expressing a preliminary view at the start of an application, "...provided that he makes it clear that it is only a provisional view and that he will give, and then does give, them (or at least the party he is provisionally against) the opportunity to try and dissuade him from his view". It was stressed that it was appropriate for courts to make robust decisions on procedural and case management issues, provided they were made properly and fairly.

 A full copy of the judgment can be found here.


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Articles are intended as an introduction to the topic and do not constitute legal advice.