APPLICATIONS TO SET ASIDE SUMMARY JUDGMENT ORDERS: A WORLD OF THEIR OWN: NOT QUITE CPR 39.(3) – BUT VERY CLOSE

A party seeking to set aside an order for summary judgment has to deal with principles that are almost unique.  This was emphasised in the judgment of Miss Penelpe Reed QC  in Phonographic Performance Ltd v Balgun (t/a Mama Africa) [2018] EWHC 1327 (Ch).  The court has to have regard to the provisions of CPR 39.3(5) but is not bound by them.  Further the provisions of CPR 3.9 and the principles relating to relief of sanctions are not relevant to an application to set aside an order for summary judgment.

“I agree with Master Marsh, and nobody has urged me to do otherwise, that the learning on relief from sanctions is not helpful in this context.”

THE CASE

The claimant brought an action on the basis that the defendant was infringing copyright when two songs were played by disk jockeys in his restaurant. Proceedings were served and a date set for a summary judgment application.  The defendant did not attend the application because he was at another court involved in family proceedings on the same day.  Judgment was given in September 2017, it was not until November 2017 that the defendant made an application to set aside the judgment.

The application was refused by the Master. The defendant appealed.

THE JUDGMENT ON APPEAL: THE RELEVANT CRITERIA

On appeal the judge considered the relevant criteria when seeking to set aside summary judgment.

1. 1. It is clear from the judgment of Master Price that he approached the question of whether he should set aside judgment on the basis of the criteria which are set out in CPR 39.3(5) which reads:

“Where an application is made under para.(2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant-

(a) has 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 good reason for not attending the trial; and

(c) has a reasonable prospect of success at the trial.”

1. 1. It is clear that provision applies to trials and not applications for summary judgment. I will come onto the arguments about whether that approach was correct or not. The Master concluded that the defendant had not acted promptly and he doubted the credibility of the defendant’s explanation that he had difficulty with the post. He considered that he defendant did not have a good explanation for not attending the hearing on 20 September as he had notice of it. Finally, the Master considered that the defendant did not have a defence to the claim. He said:

“The defendant says that the events of which complaint is being made at his premises were essentially private parties at which DJs were employed and he was not in a position to stipulate in relation to what music was played. As it seems to me, that is a risk he took and that, in fact, by reason of allowing these events to take place on his premises he, in effect, is authorising what took place in relation to the playing of music and that music has proven to be played in infringement of the claimant’s rights.”

1. 1. The grounds of appeal assert that the defendant was not aware of any proceedings against him (which is supported by various subsidiary points), that the defendant acted promptly when he became aware of the judgment and applied to set it aside and that there was a real prospect of success for his defence.

   2. The argument on this application for permission to appeal before me has been put in a somewhat different way by Mr. Khan who appeared for Mr. Balogun. He argued first of all that Master Price’ approach to the principles applicable to setting aside an order for summary judgment obtained in the absence of a party was wrong, in that he had applied the test for setting aside judgment after a trial, which was not the right approach. Secondly, the defence had real prospects of success because the defendant had authorised the playing of music in the restaurant, but he had not authorised the infringement of copyright. He had no control over whether independent DJ’s played music infringing the copyright. He also made a third submission that there were other reasons why this matter ought to go to trial, including the fact that it was inappropriate to conduct a mini trial at the summary judgment stage.

   3. I am conscious that I am dealing with an application for permission to appeal against the refusal of Master Price to set aside the order for summary judgment he had made. That is a matter of discretion for the court and, therefore I have to be persuaded that either he has erred in law, that the decision is outside the range of reasonable disagreement and therefore is manifestly wrong or there was a serious procedural or other irregularity that renders the decision unjust.

   4. I turn now to the approach to setting aside summary judgment orders. The practice direction to CPR 24 provides in para.8.1:

“If an order for summary judgment is made against a respondent who does not appear at the hearing of the application, the respondent may apply for the order to be set aside or varied. (see also rule23.11)

8.2 On the hearing of an application under para.8.1 the court may make such order as it thinks fit.”

1. 1. In Tubelike Limited (In Liquidation) & Others -v- Visitjourneys.com Limited [2016] EWHC 43 (Ch), Chief Master Marsh considered this provision. As he pointed out, there is no guidance in The White Book as to how this provision should be applied and, indeed, it is not part of the rules. The reference to CPR 23.11 is not helpful in that that rule provides that a court may relist an application where a party has not turned up. He was referred to CPR 39.35 as well as the law on relief from sanctions and other provisions of the CPR where judgments can be set aside and he concluded (at para.22 of his judgment):

“I consider that the right approach for the court to adopt when considering an application to set aside judgment made under rule24 in the absence of a party is to apply by analogy the provisions of rule.39.3(5) without being a slave to the requirements of that rule. The power contained in para.8.1 of Practice Direction 24 gives an unfettered jurisdiction to the court and in exercising that power the court should have in mind the criteria in rule39.3(5) and also the provisions of the overriding objective. I am not persuaded by Ms. Helmore’s submission that is should have regard to rule 3.6 and therefore, the provisions for relief against sanctions contained in rule 3.9. To do so, would be to heavily overload the approach the court should adopt to criteria which are foreign to it.”

1. Mr. Khan has submitted that this is not the right approach to setting aside summary judgment orders because CPR 39.3(5) is directed towards a situation where the court is concerned to ensure finality after a trial. I think there is some force in this argument and it seems to me that it ought to be easier to set aside summary judgment orders in appropriate circumstances.

2. However, as Chief Master Marsh made clear in Tubelike, he was only adopting the CPR 39. 3(5) requirements as a guide and it seems to me that they ought not to be too rigidly applied in circumstances where there has not been a trial, and that the court should also take into account other rules of the CPR which provide that judgments can be set aside, for example, judgments in default under CPR 13.

3. Further, it seems to me that it is not inappropriate for a court to take into account the considerations that are set out in CPR 39. 3(5). The promptness with which a party has acted, the reasons for non-appearance and whether the party applying has real prospects of succeeding if the matter were to get to trial are all relevant considerations. There may be others, including whether there are other reasons why the matter ought to be tried.

4. I agree with Master Marsh, and nobody has urged me to do otherwise, that the learning on relief from sanctions is not helpful in this context.

5. Master Price had the Tubelike case before him and he did use the conditions in CPR 39. 3(5) as a guide but it is hard to say that those considerations were not relevant ones for the court to take into account in exercising its jurisdiction, provided that they were not applied with undue rigidity. Therefore, attractively as the submission was put, I do not consider that Master Price’ decision can be criticised as wrong on the basis of the approach he took to the exercise of his discretion.

6. Therefore, I turn to the question is whether there are real prospects of arguing that Master Price was wrong on other grounds to exercise his discretion in the way that he did. First of all, it is said that he was wrong to say that the defendant did not act promptly. It is clear that the order was served on the defendant the day after it was made. It also appears that he did contact the court in October, but he took no steps until enforcement was attempted in November. While another judge may have taken a different view as to whether this was sufficiently prompt or not, bearing in mind that the defendant was acting in person I do not consider that Master Price can be criticised for finding that the application had not been made promptly. It was a view he was entitled to take.

7. On the question of the reason why the defendant failed to attend the hearing, I consider that Master Price was right to conclude that the defendant had proper notice and the notes to CPR 39.3(5) in The White Book state that a mere assertion that a party was unaware of the hearing date is unlikely to be sufficient. The defendant knew of the proceedings (he filed a defence and corresponded with the claimant) and the attempts made by the claimant to bring the hearing of the summary judgment application to his attention make it unlikely that he did not know of it.

8. However, what the Master perhaps did not take sufficient notice of was that the defendant was engaged in a hearing of other proceedings on the date when the summary judgment application was heard. The defendant clearly mentioned this a couple of times to the Master and he does not mention it in his judgment. However, it is not clear to me why the defendant did not inform he court in advance that he could not attend on the date fixed for the summary judgment application.”

The judge went on to find that the defendant had no defence on the merits.  The application for permission to amend was refused.