Unilever Plc v Chefaro Proprietaries Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date23 November 1994
Judgment citation (vLex)[1994] EWCA Civ J1123-8
Docket NumberCHPCF 94/0851/B

[1994] EWCA Civ J1123-8

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

CHPCF 94/0851/B

Between
Unilever Plc
Plaintiff
and
Chefaro Proprietaries Ltd
Defendant

MR C FLOYD QC (instructed by Messrs Hopkins & Wood, DX 146, London) appeared on behalf of the Defendant

MR H CARR (instructed by Messrs Needham & Grant, London WC2) appeared on behalf of the Plaintiff

1

Wednesday 23 November 1994

2

THE MASTER OF THE ROLLS: There is, almost inevitably, a time-lag between the date an appeal is set down and the date it is heard. Such a time-lag is almost inevitable because when set down an appeal is not usually ready to be heard. There are procedural steps to be taken before the appeal is ready for hearing and a slot must be found for the case in the Court's calendar. In an ideal world the time-lag would not be lengthy and the Court would hear the appeal as soon as it was ready to be heard.

3

Over the past years the Court's backlog of unheard appeals has increased and the time-lag between setting-down and hearing has steadily lengthened. This has prompted parties who fear that delay will be prejudicial to their interests to apply for the hearing of their appeal to be expedited. The Civil Division's Review of the Legal Year 1992–3 contained this passage:

"These waiting periods, understandably, prompt parties to apply to the Court asking that the hearing of their appeals be expedited. If compelling grounds are shown, such applications may be granted; but it has always to be remembered that the expedition of one appeal inevitably means the deferment of another".

4

The Review of the Legal Year 1993–94 also referred to this matter:

"Delay in the hearing of appeals not infrequently causes loss, hardship, inconvenience and anxiety to one or both of the parties. Faced with a long wait before their appeals can be heard, parties unsurprisingly apply to the Court for the hearing of their cases to be expedited. They can often advance strong grounds for expedition. But the expedition of one appeal inevitably means the postponement of the date at which another appeal can be heard, and the Court cannot order expedition of all the appeals it would wish. On occasion, the Court has resolved this problem by ordering that a hearing be expedited but imposing strict pre-determined limits on the time allowed for oral argument of the appeal."

5

Since most appeals are scheduled to be heard on dates fixed well in advance, and since Court sittings are so far as possible planned a long time ahead, the expediting of an appeal other than the shortest is likely to have one or other of two possible consequences, usually both. One is that a fixture already made for the hearing of another appeal has to be cancelled. The other is that the hearing of another appeal, which may well have been awaiting hearing for about 18 months, has to be deferred. Both these consequences are highly distasteful both to the Court and to the parties in the displaced appeal or appeals. This in turn has had two consequences. One is that the Court has in general been sparing in its grant of applications for expedition. Since it cannot grant all the applications it would wish, it has imposed a high threshold which a party must cross before its application will be granted. The second is that where the threshold is crossed and an expedited hearing is ordered, the Court will in fixing the date for that hearing give weight not to the wishes of the parties to that appeal but to the interests of other parties adversely affected by the order. It will, for instance, do its utmost to avoid cancelling a fixture which has already been cancelled on a previous occasion. The greater the expedition ordered, the less regard can usually be had to the parties' preferences concerning dates. Expedition will not ordinarily be granted unless the party seeking it is willing, if need be, to change counsel. In an appropriate case the respondent also may have to change counsel; this possible adverse consequence will cause the Court to lean against making an order save in a clear case. In granting an application for expedition, the Court may seek to mitigate the disruption caused to other parties by giving procedural directions not currently given in the ordinary run of cases with a view to ensuring that the appeal is heard in the minimum time necessary to achieve a just result.

6

In recent weeks over 40 applications for expedition have been lodged with the Civil Appeals Office. Few of these are devoid of merit. But few can be granted without gross disruption to other parties. Perhaps because the principles on which the Court works are not well understood, there appears to be a tendency for parties to apply for expedition in the hope that the application may be granted but in the belief that if it is not they are no worse off. This is understandable, but it imposes a heavy burden on those whose task it is to read and rule on such applications, particularly where rulings once given are the subject of question and argument.

7

With a view to making known the broad principles governing the Court's practice, four applications have been referred to the Court for argument and decision. But before turning to these cases we attempt to describe the Court's practice. No statement can cover the novel, the unexpected and the exceptional, and no two cases are identical. So the practice must be understood and followed with a measure of flexibility and in recognition that no statement can be exhaustive But it is in our view possible to give a reliable indication of the principles the Court is likely to apply. We therefore give this judgment of the Court.

8

Some appeals are so urgent that justice can only be done if the appeal is heard either immediately or within days. In this category we put:

(1) appeals against committal orders, particularly if the adverse finding is challenged or the sentence is short;

(2) cases in which children are likely to suffer extraordinary prejudice (i.e. prejudice beyond that almost inevitably consequent on involvement in proceedings) if a decision is delayed;

(3) cases under the Hague Convention;

(4) asylum appeals concerning return to third countries, where the right to return may be jeopardised by delay;

(5) cases in which the execution of a possession order is imminent and which appear to have some merit;

(6) cases in which a decision is about to be taken or implemented which will be irrevocable or confer rights on third parties;

(7) cases in which publication of allegedly unlawful material is imminent;

(8) appeals against judicial decisions made in the course of continuing proceedings.

9

In all these cases, not least (5), the Court will expect the parties involved to approach it as soon as they learn of the order which it is sought to challenge. When the approach is left until the eleventh hour, or the necessary materials are not provided, it may well prove impracticable to arrange a hearing.

10

The Court recognises the need to try and arrange expedited hearings where it appears that, without such expedition,

(1) a party may lose its livelihood, business or home or suffer irreparable loss or extraordinary hardship;

(2) the appeal will become futile;

(3) the resolution of numerous cases, turning on the outcome of a case under appeal, will be unreasonably delayed, or the orderly management of class or multi-party litigation in a lower court will be disrupted;

(4) widespread divergencies of practice are likely to continue, with the prospect of multiple appeals until the correct practice is laid down;

(5) there would be serious detriment to good public administration or to the...

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