PI Brief Update

Failure To Attend A Hearing & CPR 39.3(5) - Nicholas Dobbs, Temple Garden Chambers

25/03/22. In Miah v Ullah,[1] the High Court considered whether to grant the Defendant relief under CPR 39.5 for failing to attend a disposal hearing. The Claimant had applied for relief under section 50 Administration of Justice Act 1985, to remove the Defendant as administrator and to be appointed substitute administrator in his place. An unless order was made giving the Defendant 14 days from service of the order to file and serve any evidence on which he wished to rely to contest the claim. He did not do so.

At a subsequent disposal hearing, the Defendant was removed as administrator and the Claimant was appointed as substitute administrator in his stead. The Defendant applied to set aside the order. The Court reiterated that there are only certain circumstances in which an order can be set aside, and if a party does not identify the legal basis for setting aside an order and persuade the Court that the relevant conditions are satisfied, or the relevant test is met, then the order must stand, and only an appeal court would be able to overturn it.

The Defendant accepted that he had received notice of the hearing but asserted that he did not fully understand it. He accepted he received a letter requiring him to provide his email address to the court for a remote hearing but did not understand everything and could not find a solicitor to represent him. There was some inconsistency and lack of clarity in his evidence, but it was in effect accepted that he did not understand the order, could not afford legal advice, did not receive legal advice at the time and that he only became actively aware of the hearing after it occurred.

CPR 39.3(5) provides that 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. It was agreed the Defendant had acted promptly, it was therefore necessary to decide whether there was a good reason for not attending the hearing and whether the Defendant had a reasonable prospect of success at such a hearing.

The Court considered the commentary in the White Book 2021 at 39.3.7.2, and held that when considering whether there was good reason for not attending the hearing, it must “consider each case in light of all the relevant factors for non-attendance and, looking at the matter in the round, determine whether the reason is sufficient for the court to exercise its discretion in favour of the defaulting party”. Further, once a party was aware that proceedings had been served, they must expect to receive communications personally from the opposing party and/or the court.

It was held that the Defendant had not demonstrated good reason for not attending the hearing. He was aware of the proceedings. He had sought but failed to obtain legal advice. He received but failed to act on the order giving him notice of the hearing. The apparent language barrier was not of itself a good reason for not to attending. It was reiterated that for the court to deal with cases justly and at proportionate cost, and to give effect to the overriding objective, litigants who are aware of proceedings served on them must engage with those proceedings.

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