FAILING TO TURN UP TO A TRIAL: DEFENDANT’S APPLICATION REFUSED: CPR 39.3(3) CONSIDERED
This blog has looked several times at the issues relating to CPR 39.3(3), the rule that governs an application when a party fails to attend a trial or hearing. The rule was considered by Mrs Justice Lambert in KD v Gaisford  EWHC 3722 (QB).
“The defendant’s conduct as revealed in the correspondence and evidence before me today suggests strongly that the defendant was simply using every excuse available to put off the trial which …. had been listed for many months.”
CPR 39.3(3) provides:
(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(GL) 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 FACTS IN KD
The claimant brought an action for damages for sexual assault against the defendant. The defendant was informed of the trial date. The defendant did not attend. The trial proceeded and an award for £53152 damages was made. The judge noted:-
At the beginning of the trial in February 2019 the claimant made an application that the hearing should proceed in the defendant’s absence because, on the day before the hearing, on 4 February 2019, the court and the claimant’s solicitor had received an email from Ms Claire Smout, the custodial lead at HMP Rye Hill, stating that Mr Gaisford had refused to attend court. I granted the claimant’s application for the reasons set out in paragraph 5 of my judgment. In summary, my reasoning was that:
(1) it was clear from correspondence to and from the defendant that the defendant knew of the trial date, his right to be present for the purposes of cross-examination and submissions, and his right to be represented at trial.
(2) The defendant had taken no practical steps to arrange for his attendance at court. (3) The defendant knew that it was his responsibility to take steps to arrange for his attendance at court not least because he had been informed of this on a number of occasions by the claimant’s solicitor, Ms O’Connell.
(4) The claimant’s solicitor had written to the defendant in the period leading to the trial trying to find out whether he was intending to attend court and, if so, how. She offered to speak to him personally by telephone and, later as the trial grew nearer, to speak with one of the defendant’s named friends and family telephone contacts to discuss his plans and arrangements.
(5) The defendant knew that if he did not attend trial, the claimant would apply to the court that the trial should proceed in his absence. He had been told this in quite clear and emphatic terms in a letter dated 18 January 2019 written by the claimant’s solicitor.
(6) On 14 November 2018 the defendant had made an application for the trial to be adjourned because of his pending application to the Criminal Cases Review Commission. The application was not served on Ms O’Connell, but she became aware of it in January 2019 when Mr David Nicholson of Nicholson’s Investigations wrote to her on the defendant’s behalf. The adjournment application was determined by Waksman J on 29 January 2019 who refused the application on the basis that the application was wholly speculative and uncertain, and that the trial date had by then been fixed for over a year.
(7) The defendant did not write to the court stating that he wished to attend but was for some reason unable to do so; nor did he write to the court and Ms O’Connell stating whether he intended to attend and if so how.
(8) The email from Ms Smout, stating that the defendant was refusing to attend, was consistent with the defendant’s failure to take any practical steps to arrange for his attendance at court.
THE JUDGE’S DECISION: NO GOOD REASON FOR NON-ATTENDANCE
The defendant sought to set the application aside. It was common ground that the application had been made promptly. However the judge rejected the defendant’s argument that he had a good reason for not attending.
There is no dispute that the defendant made his application under CPR 39.3 promptly. I therefore address, first,the defendant’s submission that there was a good reason for his not attending trial. I reject the submission: I do not accept that the defendant has demonstrated that there was a good reason for his non-attendance. I find that the defendant could and should have taken steps to arrange for his transfer to a prison which had a video link, or his transfer to a local prison, or for legal representation, long before the end of January 2019. He was urged repeatedly to do so by the claimant’s solicitor in correspondence which (as is accepted) he received. He was informed that if for any reason he did not attend trial an application would be made for the hearing to proceed in his absence. If the defendant, for any reason, had decided that it was not safe for him to be transferred to HMP Pentonville for the reasons given in his witness statement, then he could have arranged a transfer to a different prison (either for the purpose of a video link or another local prison) or he could have arranged for legal representation at the trial just as he has arranged for legal representation for this hearing. He however took no steps to arrange for his attendance or representation at trial.
I do not accept that the defendant believed that his application for an adjournment had been or would be successful, either because the cheque had been cashed or for any other reason. As a former Chief Superintendent with the Metropolitan Police Force, the defendant is an experienced litigator, albeit his experience was confined to the criminal jurisdiction. It defies common sense that he would have assumed, simply because the cheque was cashed, that his application had been successful. Furthermore after the cheque had been cashed, he wrote to Master Thornett (who was case managing the action) on 6 December 2018 stating that he wanted to appoint a legal representative to fight his case if the adjournment request was rejected (and that this was something which would take time), a statement which is not consistent with the assertion now advanced before me, that he assumed that the application had been or would be successful. Even if he did believe that the application would be successful, such a belief was not reasonable. If for any reason he had wondered what, if any, significance he should attach to the fact that the cheque accompanying the application had been cashed, there were a number of steps he could have taken. He could have telephoned or written to the claimant’s solicitors. He could have telephoned the court to find out what he should read into the fact that the cheque had been cashed. He however took none of these steps.
Nor do I accept that the defendant engaged with the court. Engaging with the court means engaging practically with the court. Sending a letter dated 3 February 2019 seeking an adjournment of a hearing listed to start on the 4 or 5 February 2019 does not permit the court to respond in any practical way to the contents of the letter. Nor does an email sent after close of business on 5 February afford the court the opportunity to respond, Even if the email had reached me, the contents of the letter was no more than an invitation for the trial to be stopped in its tracks, an invitation which I would have been bound to refuse.
The defendant’s conduct as revealed in the correspondence and evidence before me today suggests strongly that the defendant was simply using every excuse available to put off the trial which, as Ms Fenelon notes, had been listed for many months. I am not satisfied that there was a good reason for the defendant not attending the trial and I refuse the application to set aside my judgment of February 2019. It has fallen at the second hurdle (CPR 39.3(5)(b)).
THE MERITS OF THE CASE
However, I also deal with the further points raised by the defendant today. First, the issue of limitation. The point made is that the claim was not issued until January 2016, three years after the defendant’s conviction for the offence. It is submitted that, had the defendant been present, then the claimant would have been challenged in cross-examination upon the reason for this delay. The claimant gave evidence to me at trial on a range of issues, including his explanation for the delay in commencing proceedings. Even if I had permitted the defendant to question the claimant (or if I had posed questions on the topic on the defendant’s behalf), the submission ignores the point that the central question for me on limitation is whether it would be equitable for me under s 33(1) Limitation Act 1980 to set aside the time limits prescribed in the Act. Putting it broadly, the question is whether the lapse of time in commencing proceedings meant that a fair trial was no longer possible. I have no doubt that it was equitable to set aside the time limits set out in the Act. Whatever the cause of the delay in starting proceedings, this was a case in which the underlying facts had already been the subject of examination and cross-examination before the jury at Lewes Crown Court in April 2013 and the transcript of the claimant’s evidence to the jury was available to me at trial in February 2019. Adopting the higher standard of proof, the jury had found the facts proven. Of equal importance, although the full suite of documents and tapes from the original police investigation were not retained, the claimant’s interview with the police very shortly after the incident was available, both the transcript and the tape, together with the transcript of the defendant’s interview. I therefore do not find that the point which is now raised in respect of limitation has any, let alone any real, prospect of success.
The further point which is made by Mr Stansbury is that there were inconsistencies in the claimant’s evidence which were not explored in cross-examination, this being a case in which the claimant’s credibility was in issue. I bear in mind that given the fact of the conviction, the burden of disproving the jury’s verdict rested with the defendant. I note that the claimant’s core evidence that there was an assault and that that assault was non-consensual has remained consistent over the course of the years. No doubt he would have been cross-examined at length (had I permitted it) as to the life events which have affected the claimant since the assault took place, but bearing in mind the material which existed from the original police investigation and the essential consistency in the claimant’s account over the course of the years, I do not find that there was any reasonable prospect of the defendant discharging the evidential burden upon him that the assault did not take place. I also note in parenthesis, as I did in my judgment, that the defendant’s response to the allegation changed significantly over time: initially he denied that any sexual event had taken place; ultimately his case was that there had been masturbation but it had been consensual.