Failure To Attend Trial

The failure to attend trial, can result in a decision being made against the party who fails to attend.

If a judgment is entered against a party in their absence, then this can negatively impact the party’s credit rating for up to 6 years. This means that a party will find it hard to apply for credit or a mortgage. Additionally, certain employers in certain careers may prohibit their employees from getting into financial difficulty, so it can impact a party’s work life too.

It is therefore always important to attend a trial to ensure you can argue your case, but in the event that you miss the trial date, it is possible to make an application to appeal such an order. The party who makes the application is known as the Applicant.

The Courts will follow the Civil Procedure Rules (“CPR”) when deciding an application and it is important that the application contains enough evidence, as prescribed by the CPR, to stand a chance of being successful. The recent case of Mabrouk v Murray [2022] EWCA Civ 960 discussed the relevant parts of the CPR to follow when making such an application. The decision detailed what evidence the Courts would expect to see.

Setting aside an order made in the absence of a party

In Mabrouk v Murray, the Court of Appeal decided that the relevant part of the CPR was rule 39.3. This rule provides as follows:

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

(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) for an order to restore proceedings 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.”

The CPR dictates that the Court must use their discretion when assessing such applications, and the Court of Appeal had to consider the three relevant principles at CPR 39.3(5)(a)-(c) in detail.

Due to the fact that the Applicant was also making this application beyond the time limits for appealing the order, the Court also looked at the Denton principles for seeking relief, which are principles used where a Court order has not been complied with by the time set. However, this blog focuses on the application of the CPR for failing to attend a trial.

The case of Mabrouk v Murray, concerned an application to challenge (the Court of Appeal commented that it was unsure exactly what the application attempted to do, as it was not clearly specified, but appeared to be an application to appeal the judgment out of time) the judgment dated 22 November 2021. The Defendant/Applicant, Mr Mabrouk brought his application to challenge on 30 March 2022. Mr Mabrouk was residing in Libya at the time of the judgment, and therefore cited his in ability to attend in person in the UK as an issue.

(a) – Acting promptly

In Mabrouk v Murray, the Court of Appeal noted that the application should usually be made within weeks rather than months. However, it further noted that where the matter is more straightforward, then 4 weeks may be considered to be too long.

The Court of Appeal explained that the Applicant should evidence in their application when they found out about the decision of the trial, so that the Court can assess how prompt the Applicant was when bringing the application. Additionally, the application should detail a chronology about what steps had been taken by the Applicant between the date of finding out about the decision in the trial and making the application, so that the Court can decide if there is a justifiable reason for taking longer to issue the application.

Any issues that an Applicant has with bringing the application promptly should be fully documented and evidence with relevant documents e.g. if the Applicant had technical issues with accessing documents, then evidence should be submitted showing the technical issues. In the case of Mabrouk v Murray, the Court of Appeal was not impressed with the explanation that the Applicant was residing in Libya and that internet and electricity supplies are sporadic in Libya, which the Applicant alleged caused a delay. The Court of Appeal commented that this was not backed up with evidence demonstrating the outages between the judgment date of 22 November 2021 and the date the application was made on 30 March 2022.

How document heavy or complex the case is, is also a key factor in deciding how long is too long to bring an application i.e. it was insinuated that more complicated matters with vast amounts of documents, may be afforded more time to bring the application. In the case of Mabrouk v Murray, the Court of Appeal noted that the Applicant had been involved with this case for around 4 years, through his previously instructed solicitor. Therefore, he should have been well aware of the case, especially as the Claimant’s position had not changed significantly.

Importantly, the Court of Appeal did not feel that a party’s financial position should be a relevant factor, so if a party cannot afford the application, then this should not be taken into account, particularly where that party may actually have means to pay.

(b)- Good reason for not attending?

The Court of Appeal noted that a party cannot simply say that they were unaware of the trial date(s) to meet the test of having a good reason for not attending.

Additionally, not being in the UK was not a good reason either, the Court of Appeal noted that even before the pandemic parties could attend civil hearings by way of video link with permission of the Courts. In the case of Mabrouk v Murray, the Court of Appeal specifically noted that the Claimant’s solicitors had invited Mr Mabrouk to attend the hearing by way of video link in an email to him.

The Court of Appeal further noted that an Applicant would have justify what has changed between the original missed trial date(s) and any future re-trial i.e. what is now permitting the Applicant the ability to make another date, which prevented them from attending the original trial date(s).

(c)- Reasonable prospect of success at any re-trial?

The Court of Appeal summarised that an Applicant needs to be able to show they have a defence which carries some degree of conviction. However, due to the fact that in the case of Mabrouk v Murray, there was a full written judgment, then the Court of Appeal expected the application to explain what aspects of the judgment were incorrect, based on reference to material not available to the judge at the original hearing or that key findings of the judgment are erroneous.

Comments

A party who is faced with a written judgment made at a trial in their absence, needs to carefully consider the judgment and work out what may be incorrect with the Court’s reasoning behind the decision. This needs to be dealt with quickly. Any delays in being able to bring the application need to be carefully explained, and fully evidenced to show reasons for any delays. The application will also need to show evidence as to why the party could not attend the original hearing date(s). Clearly presenting a well explained chronology, backed up by evidence will be key to whether or not an application will succeed.

If you need assistance in regards to failing to attend a trial, call our Dispute Resolution experts now on 0330 822 3451 or request a call back.