A HARSH REMINDER: IF YOU DON’T TURN UP FOR TRIAL THEN THE TEST FOR SETTING JUDGMENT ASIDE IS VERY TOUGH: BE PROMPT, BE VERY PROMPT

In Lomax & Ors v Greenslade [2018] EWHC 2623 (Ch)  Mr Justice Henry Carr refused to set aside a judgment obtained after the defendant failed to attend trial. There was a major mistake on the part of the court, however the defendant’s delay meant the application was not “prompt”.

THE CASE

The defendant defended an action under the Inheritance (Provision for Family and Dependants Act) 1975. The matter was listed for trial. She made an application for an adjournment. She supplied medical evidence  to the court in support of her inability to attend trial. Due to an error by the court most of that medical evidence was not, in fact, shown to the trial judge, who refused the application and made an order in favour of the claimants.   The defendant appealed.One of the grounds for appeal was that the judge should have allowed an adjournment.

THE RULES

When a party fails to attend a trial the only relevant rule is CPR 39.3

“(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.

(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.

(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant –

(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

(c) has a reasonable prospect of success at the trial.”

Note that an applicant has to satisfy all three limbs of this test.

THE APPLICATION IN THIS CASE

The defendant had not, in fact, made an application at all.  The judge reviewed the authorities on this issue and observed:

1. The principle set out by the Master of the Rolls was that if the criteria in CPR Rule 39.3 are not satisfied, an applicant should not be allowed through the back door to obtain what he or she could not have obtained through the front door. If no application under CPR 39.3(5) has been made, the appellate court might have to make that decision for itself unless it decides to remit the case to the trial judge. In the present case, no application was made and no application has yet been made under CPR Rule 39.3(5). Bearing in mind the size of the estate, which is relatively modest, I do not think that it would be at all sensible to remit the matter yet again to the county court, which might again lead to a further appeal, and I intend to make the decision as to whether these three criteria are satisfied myself.

2. As to the first criteria, could the application have been made sooner? Has it been made sufficiently promptly, I think it fair to conclude that until the transcript of the judgment was obtained in March 2018, at which time the appellant had the benefit of legal advice, until an application could not sensibly have been made because, although I bear in mind such an application was floated in the appellant’s notice, the grounds for making it and precisely what the judge did and did not consider were not clear. However, since March 2018 the application has been open to the appellant to make and it has not yet been made. I do not think that that satisfies the first criteria in CPR Rule 30.3(5). I bear in mind that the applicant says that it was her solicitor’s fault that the application was not made sufficiently promptly. If that is so, and I make no observations about whether that is so or not, then the appellant’s complaint is against her solicitor at the time rather than against the respondents to this appeal.

3. Secondly, did the appellant have a good reason for not attending the trial? I think it quite possible that she did have a good reason for not attending the trial. I take very seriously the evidence as to her mental illness, and I am prepared to accept (and it may well be that the judge would have accepted as well) that in the light of the letter from Dr Okafor she did have a good reason, but there are three criteria, and she has failed on the first.

4. As to the third criteria (Would she have a reasonable prospect of success at the trial?), I am going to come on and consider the substance of this appeal at this stage, and that will answer that question. But my conclusion on whether this appeal should be allowed to the extent that the judge ought to have allowed an adjournment is that I reject that ground of appeal.