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Failure to attend trial: Akita and another v Governor and Company of the Bank of Ireland

The case of Akita and another v Governor and Company of the Bank of Ireland discussed the issue of CPR 39.3, which states:

“39.3 (1) The Court may proceed with a trial in the absence of a party but:

(b) If the Claimant does not attend it may strike out his claim and defence to counterclaim.

(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.”

Background

The claimant had taken out a loan with the defendant, the Bank of Ireland. The claim arose out of a Part 8 claim seeking a declaration that any residual debt had been comprised in an agreement. A two-day trial had been scheduled at Truro County Court for 23 and 24 August 2017.

The day before the trial, the parties were in settlement discussions until late in the evening. Although there was compromise on several issues, no final settlement had been reached. The claimants had emailed the court asking for more time to reach the agreement.

The claimants and their representatives were based in London. The trial was due to be held in Truro. Due to the fact that settlement negotiations had gone on into the evening, the claimants did not set off for Truro until the morning of the trial. They set out for Truro at 5.00 am but were delayed during the journey. The second claimant managed to contact the court and explain that they would be late, but that they should be there by 11.00 am.

Despite this, at 10.00 am, the listed time for commencement of the trial, the judge and the defendant’s counsel held a discussion. In the course of this discussion, the defendant applied for the claim to be struck out under CPR 39.3. As the claimants had contacted the court, the judge allowed them until 11.00 am for the trial to start. At 11.30 am, the claimants had still not arrived and the claim was struck out.

The claimants tried to apply for the order to be set aside, but that application was unsuccessful. The claimants appealed.

The appeal

The appeal was heard in the Queen’s Bench Division by Spencer J on 31 January 2019.

Spencer J went through the requirements of CPR 39.3 and set out the circumstances in which a court may grant an application to set aside when a case has been struck out under CPR 39.3(2). Those criteria are:

  • That the party acted promptly.
  • That the party had good reason for not attending the trial.
  • That the party had a reasonably prospect of success.

Spencer J examined the conversation that took place between the defendant’s representatives and the recorder on the date of the original trial. The recorder had allowed the claimants until 11.30 am to attend at court and had taken into account the fact that the second claimant had attempted to contact the court to confirm the position that she was late.

Spencer J then considered the applications made by the claimants in an attempt to restore their claim. The second claimant had made an urgent application to set aside the recorder’s order. The application came before a district judge on 28 November 2017 and this was dismissed. Spencer J considered the applications and the facts surrounding the failure to attend the original trial. He stated that:

“It seems to me that it cannot mean simply failure to attend on time otherwise the party who attended the trial listed for 10 o’clock would at 10.05 be a party who had failed to attend trial, and that cannot be right… A failure to attend trial is in the context of a failure to attend by the time the Judge who is due to try the case effectively decides not to wait any further”.

He then went on to say:

“In the absence of evidence that the non-attending party did not intend to come to Court at all, any Judge in those circumstances, particularly when the late start would not put the trial timetable seriously at risk, would give more time for the parties to attend.”

He took into account that the lateness of the claimants at the original trial was due to the settlement negotiations the previous evening, and that this had caused the claimants not to set off for Truro the day before trial.

He also commented that the second claimant had made more than one attempt to get in touch with the court but had difficulties getting through. He also commented that the recorder knew that this was not a case of wilful non-attendance but a case of a party being late.

He also commented that the recorder had not made any requirement for the defendants to try and contact the claimants themselves. He made the comment that:

“Both the Defendants and the Recorder were reactive and passive rather than proactive in trying to find out what has happened to the [Claimants]”.

In all the circumstances, Spencer J found that it was inappropriate and premature for the recorder to have triggered his power under CPR 39.3. Attendance by 2.00 pm would have allowed the case to proceed within the time listed by the court. There would have been no serious inconvenience to any other parties.

He also criticised the recorder for not checking that this was a case of non-attendance as opposed to late attendance. If he had taken steps to ascertain this, he would have probably afforded extra time as the claimants were only half an hour away. Accordingly, the appeal was allowed and the matter was reinstated.

Commentary

This is a welcome discussion of the rules surrounding CPR 39.3. From his judgment, it would appear that Spencer J took a reasonable approach to the issue of lateness of a party at court. He also acknowledged that the courts could be very difficult to contact, which added to the issues.

It should also be noted that an opposing side should have made efforts to obtain information as to the claimants’ whereabouts in this matter.

So, the lesson is that if you are on the opposing side to a party that has not attended, it would be wise to try and make enquiries as to their whereabouts.

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