Missing a trial date, applying to adjourn a trial and overriding objective

Practice Direction 39A of the Civil Procedure Rules 1998, (‘CPR’), gives guidance as to what happens if one Party fails to attend Trial.

A Judge should not exercise his discretion to strike out a claim merely because a Party failed to show, when legally represented.

Where a Party fails to attend, and has no legal representation, the effect of which means that the Party is absent from Trial, the Court has a general discretion under Part 1 CPR to effect the overriding objective having regard to all the circumstances, which includes effectively managing a case, and disposing of cases where no evidence is tendered, under Part 3.1 CPR.

Where a Party fails to attend without any explanation, the Court should still, in addition to striking out a Statement of Case, Defence, or Counterclaim, nevertheless invite the attending Party to state/prove his/her case.

What happens when a Party asks the Court to adjourn a Trial ?

The adjournment is likely to be considered by the Trial Judge, but will have to consider the administration of Justice, and Court time, as well as the effects on all parties and the costs involved.

What happens when a Judge takes the view that the Trial is to proceed in the absence of a Claimant or a Defendant?

It is likely that a Judge will rule against the party who is absent.

What do you do if you asked for an adjournment of a Trial, but the Court proceeded in any event ?

That absent Party may be able to apply to set aside the Judgment. That Party will need to make an application under Part 23 CPR. That application must be supported by evidence. The application must be made promptly, and must state the date upon which they found out that there was Judgment against them.

The Court would then have to consider relief from sanctions under Part 3.9 CPR.

It would be an abuse of process to Appeal such a decision in the first instance, but an Appeal of the decision not to set aside Judgment is not an abuse of process.

Things are different for Possession Claims:

In a Possession claim, where a Defendant does not attend, the Court has power under CPR 3.1(2)(m) to set aside Judgment because there has not been a trial per se, therefore CPR 39.3 is not applicable according to the case of Forcelux Limited v Binnie [2009] EWCA Civ 854.

The Forcelux case was expanded in Hackney London Borough Council v Findlay [2011] CA that in the absence of some unusual and highly compelling factor as in Forcelux, a Court asked to set aside a Possession Order under CPR 3.1 should generally apply the requirements of CPR 39.3(5) by analogy and should give precedence to the provisions of CPR 39.3.(5) above that of the principles set out in CPR 3.9.

David Rosen is a Solicitor-Advocate, Partner and head of Litigation at Darlingtons Solicitors, a member of the London Solicitors’ Litigation Association, and a visiting associate Professor of Law at Brunel University.

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