TRIAL JUDGE SHOULD HAVE WAITED FOR PARTIES TO ARRIVE AT COURT: APPEAL AGAINST ORDER UNDER CPR 39.3 ALLOWED
In Akita & Anor v Governor and Company of the Bank of Ireland  EWHC 1712 (QB) Mr Justice Martin Spencer held that a trial judge, knowing that parties were on the way to court, should have waited longer before striking out the action. (There may also be an object lesson here in the need to set off early, or stay overnight beforehand, when travelling to distant courts).
The claimants brought an action against the bank. On the day before trial the parties nearly reached a settlement. The matter was listed for hearing in Truro and the claimants and their solicitor were based in London. The claimants set off from London at 5.00 am. They notified the court that they were running late. At 11.30 the claimants had failed to arrive and the Recorder made an order under 39.3 striking out the claim. The claimants arrived 30 minutes later, their attempts to get the matter reinstated were unsuccessful. An application made on notice was refused. The claimants appealed.
THE CLAIMANTS’ SUCCESSFUL APPEAL
Mr Justice Martin Spencer allowed the claimants’ appeal. He held that, on the facts of this case, the trial judge, knowing that the claimants were on their way, should have waited.
In my judgment, the starting point is what is meant within Part 39.3 by failure to attend trial. It seems to me that it cannot mean simply failure to attend on time, otherwise a party who attended a trial listed for ten o’clock would at 10.05 be a party who had failed to attend trial, and that cannot be right. I put to Mr Troman, and he accepted, that 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. For example, a district judge with a list of cases due to be heard at ten o’clock, ten-thirty, eleven o’clock, eleven-thirty, twelve o’clock and twelve-thirty may decide at, for example, ten-twenty-five when it is only five minutes until the next case is due to start that a party who failed to attend at ten o’clock and was not there by ten-twenty-five had failed to attend the trial. That would be a perfectly reasonable and appropriate decision where he or she was no longer available to deal with the case because of other trials or applications staring at ten-thirty and thereafter.
Of course, a judge who is faced with a two-day trial which is due to start at ten o’clock on the first day could decide at 10.05, when one party was not there, that that would be the end of the matter and that the party had failed to attend, but in my judgment that would be a wholly unreasonable stance to take. In those circumstances, 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.
In this case, the judge waited until eleven-thirty before triggering the strike out of the claim under 39.3, and in this appellate jurisdiction I have to decide whether that was a decision to which the recorder could reasonably come and an order that he could reasonably make in the circumstances as they existed. Part of that decision must include not just what the recorder knew at the time that he made the decision but also what he could have expected to know or find out making reasonable enquiries.
It seems to me that fundamentally the reason all the parties had not attended at 10 a.m. was because of the momentum towards settlement and the negotiations that had occurred the previous day right up to Mr Loewendahl’s email at 10.40 p.m. the night before. That had, it would appear, caused the appellants and her counsel not to set off for Truro the day before (that is 22 August), and then, it would appear, that when they set off early on 23 August, they left themselves insufficient time.
According to the second appellant, she had made more than one attempt to get in touch with the court but had difficulties getting through except for the one time when, at about nine-thirty, she had anticipated getting to court by eleven. That was critical information for the recorder because he knew thereby that this was not a case of wilful non-attendance but a case of a party being late. Of course, the appellant was not there by the time that had been indicated at 11 a.m., but there is no indication that the recorder, knowing as I assume he would have done, of the difficulties there can be in getting through to the court, having required the defendants to make telephone calls to their opposite numbers or to the claimants themselves using all the resources they had in order to ascertain what the up-to-date position was. Effectively, as I understand the position, both the defendants and the recorder were reactive and passive rather than proactive in trying to find out what had happened to the appellants.
In my judgment, it was inappropriate and premature in those circumstances for the recorder to have triggered his power under Part 39.3 when even attendance by two o’clock would still have allowed the case to proceed and be completed within the time allowed by the court. Thus, to have waited that long would not have caused serious inconvenience to other parties or to these parties who had allowed two days in any event.
The recorder should have taken steps to ascertain, in view of the message that had already been received, that this was indeed a case of non-attendance as opposed to late attendance, and had he done so and ascertained that the appellant was only half-an-hour away, I have no doubt that he would have afforded that extra time. In those circumstances, I allow this appeal and I set aside the order that was made by the recorder on 23 August so that the matter shall be reinstated.