Failure to attend trial CPR 39.3:Set aside judgment

In the case of WXY -v- Henry Gewanter, Positive Profile Ltd & Mark Burby [2012] EWHC 496 (QB) Burby tried to adjourn the trial on the first day on the grounds that his family’s safety had been threatened in an attempt to stop him from attending the trial. That application failed and proceedings continued without him taking part. After, he then applied to set aside judgment.

Conditions for such an application are set out in Rule 39.3 of the CPR. That rule states:

(1) The court may proceed with a trial in the absence of a party but –

(a) if no party attends the trial, it may strike out the whole of the proceedings;

(b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and

(c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).

(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.

(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.

In this case, the court held that he had made the application promptly as it had been within three weeks of the judgment and the case was a complex one, he failed however to provide any credible evidence of the threats to his family. The court thought his true reason for his failure to attend was because of his unwillingness to face the claims against him.

The court also looked at his evidence, and found it didn’t show an arguable case on the merits, and failed to show he had a reasonable prospect of succeeding at the trial, and as a consequence, the application was refused.

All three of the pre-conditions must be met for the application to set aside judgment to suceed.

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