CPR 39.3 provides that the court can make final and effective orders in the absence of a party to the proceedings. There is no obligation on a party to attend a civil trial. Where a party is represented, their absence may not have any effect at all on the outcome of a hearing. Where the non-attending party is not represented, the consequences of non-attendance are likely to be more severe, and may result in a respectable case being wholly lost. Equally, the authority of the courts must be respected, and not turning up is not like missing a dental appointment.
The relevant rules and cases have laid down sensible protocols for what a party who fails to attend must do if they want to set aside an order or judgment made against them:
- A prompt application is expected and it is essential to set out when the party discovered that an order or judgment had been made or given against them.
- There must have been a good reason for non-attendance and that must be explained.
- There must be a reasonable prospect of success.
All three conditions must be satisfied, which makes good sense. Allowing litigants to choose not to turn up while allowing them an easy route to setting aside an order or judgment would be wasteful of court resources and allow unmeritorious litigants to run up costs. Proportionality is respected by the need for the court to pay attention to the overriding objective.
In Pickard v Roberts, Mrs Roberts’ reasons for non-attendance at the hearing of the application against her for sale of a property were found to be “entirely spurious” and she failed to explain them properly.
Despite this, the order made against Mrs Roberts in her absence was initially set aside, as the district judge considered that Mrs Roberts had a real prospect of success at trial. This led to consideration of whether the hearing was, in truth, capable of being described as a trial. The appeal judge held that the hearing in question was intended to be the effective hearing of the application and to thus produce the same finality as a trial. As a result, the appeal against the order being set aside was successful.
The judge was right to make this finding. It would not be sensible if the rules on the consequences of non-attendance only applied to full contested trials and did not apply to other applications designed to bring an end to proceedings.
Under the Insolvency Rules 1986 applications in insolvency proceedings have to be under the Insolvency Act 1986. Applications under s. 44 of the Trustee Act 1925 (which should be for the appointment of a new trustee of the property under s. 41 of the 1925 Act) should be made to the High Court as the county court does not have jurisdiction unless the value of the property is within the county court equity jurisdiction (£30,000) and there should be a Part 8 Claim Form.
If no proper application has been made of one of the types listed in section 283A within 3 years of the date of the bankruptcy order, the interest of the debtor in the property reverts to him under that section. Although the High Court on appeal has accepted the decision of DJ Paul as correct, if it was in fact made without jurisdiction, a judicial review should still be possible. However I note that both of the property owners appear to have been heavily in debt and that may be why the Deputy High Court Judge decided to overlook the procedural flaws in the case as the eventual outcome was unavoidable. This should not be treated as a precedent for procedural irregularity being disregarded.
It is not clear whether the High Court considered whether the proceedings in the county court were in the appropriate form, whether the county court had jurisdiction to make the orders applied for at all, and whether there should not have been a free-standing application for the appointment of a new trustee under the Trustee Act 1925. The effect of section 283A of the 1986 Act was not mentioned.