THE ABSENCE OF A GOOD REASON FOR NOT ATTENDING A TRIAL LEADS TO DEFENDANT’S APPLICATION TO SET ASIDE BEING REFUSED

March 9, 2022 · by · in Applications, Setting aside judgment

The judgment of Deputy Master Scher in Miah v Ullah [2021] EWHC 3712 (Ch) contains an important reminder of the rigorous test a party has to meet when they fail to appear at a trial.  The Master found that the defendant did not have a good reason for failing to attend the hearing.  The defendant’s application failed on that basis.

“For the court to deal with cases such as this justly and at proportionate cost, and to give effect to the overriding objective, litigants who are aware of proceedings served on them must engage with those proceedings. The rules apply to them, as they do to all litigants, and the court may consider giving extensions of time, or relief from sanctions, in accordance with the relevant tests.”

THE CASE

The claimants brought a Part 8 claim against the defendant to remove him as administrator of their mother’s estate. The defendant did not file evidence in response and a disposal hearing was listed.  the defendant did not attend and the defendant was removed as administrator. The defendant then sought to set aside the order made at that hearing.

THE JUDGMENT

The defendant’s application was more related to the merits of the case rather than the criteria upon which he sought to set aside the judgment obtained at the hearing.  Once the relevant criteria were established it was clear that the defendant’s application was under CPR 39.(3)(5). The defendant’s application failed because he did not have a good reason for not attending the trial.

    1. The Defendant had not set out the legal basis for his application to set aside the order in his evidence dated 5th August 2021. Deputy Master Raeburn therefore made his order very explicit: the witness evidence due to be served by 14th October 2021 needed to set out the legal basis of the application.
    1. Unfortunately, the witness statement dated 15th October 2021 also failed to identify the basis of the application to set aside. Rather, it set out a number of reasons why the Part 8 Claim was contested.
    1. It is important for me to identify the basis on which I am asked to set aside the order, as there are only certain circumstances in which I can set aside such orders and I have got to apply the correct test. If a party does not identify the legal basis for setting aside an order and persuade the Court that the relevant conditions are satisfied, or the relevant test is met, the order must stand, and only an appeal court would be able to overturn it.
    1. At today’s hearing I heard from the Defendant’s counsel, Mr. Uddin, and from the Claimant’s counsel, Ms. Wannagat. Ms. Wannagat has helpfully framed the Defendant’s application in terms of CPR rule 39.3. Mr. Uddin agreed that this was the rule under which he sought relief. Therefore, it is agreed that the test that I need to apply is set out in rule 39.3(5):
…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.
    1. In this application, the parties agree that Mr. Ullah acted promptly. I therefore need to be satisfied that Mr. Ullah had a good reason for not attending the hearing of the Part 8 Claim on 4th March 2021, and also that he had a reasonable prospect of success at such a hearing. I would then be able to exercise the residual discretion derived from the words “the court may grant the application only if…“.
    1. I will deal first with the question of whether he had a good reason.
    1. The timeline is important:
i) On 23rd September 2020, during pre-action correspondence, Mr. Ullah’s former solicitors wrote to say that they were no longer acting for him. I note Mr. Ullah’s evidence, and Mr. Uddin’s submission, that Mr Ullah still sought their advice from time to time after that. Nevertheless, I accept that he had no solicitors on record for these proceedings.
ii) On 2nd November 2020, the Part 8 Claim Form was issued. It was served by first class post on 2nd or 3rd December 2020.
iii) After the time for acknowledgement of service expired, Chief Master Marsh made the unless order approximately in Form CH44, dated 19th January 2021. That order listed a hearing on 4th March 2021 via Microsoft Teams.
iv) The order was served on 22nd January 2021. As I understand paragraph 3 of Mr. Ullah’s witness statement dated 21st July 2021, he received that order but did not fully understand it. Paragraph 5 of his witness statement dated 29th March 2021 says that he was under Kalam solicitors’ “care” at the relevant time. That is the paragraph which deals with this court order. However, I also understand from the witness statement dated 27th July 2021 that Mr. Ullah could not pay the fees sought by Kalam solicitors. I am prepared to assume that he did not receive legal advice when he received that order.
v) Mr. Ullah also received a letter dated 1st March 2021. I understand it to be the letter enclosing the bundle for the hearing on 4th March. That letter asked for his email address if he wanted to be at the hearing, which was to be heard via Microsoft Teams. (To put that into context, the Claimant was obliged to provide the court with the email address of all attendees in the usual way.) Paragraph 3 of Mr. Ullah’s witness statement dated 29th March 2021 says that he received that letter at such short notice that he was not able to understand everything. He could not find a solicitor to represent him. Later, in his witness statement dated 27th July 2021, he says that he only found out about the hearing after it had occurred.
    1. Mr. Uddin says that more effort should have been made by the Claimant’s solicitors, and in particular that they should have tried to contact him by telephone as well. However, Mr. Ullah’s former solicitors gave only a postal address, and the relevant order was sent to and received at that address. In my judgment no further efforts needed to have been made by the Claimant’s solicitors: they were entitled to write to him at the address given by his former solicitors.
    1. Now, there is some inconsistency and lack of clarity in Mr. Ullah’s evidence, as the above summary may show. I do not need to resolve it all to determine the application today. For present purposes, I am prepared to take Mr. Ullah’s case at its highest, with the most generous interpretation of his evidence, in that he received the order of 19th January 2021 but did not understand it; that he could not afford legal advice at the time and did not receive legal advice at the time; and that he only became actively aware of the hearing on 4th March, after it occurred.
    1. I have considered the commentary in the White Book 2021 in paragraph 39.3.7.2, derived from the authorities cited there. When considering whether there was good reason for not attending the hearing, I must “consider each case in light of all the relevant factors for non-attendance and, looking at the matter in the round, determine whether the reason is sufficient for the court to exercise its discretion in favour of the defaulting party“. I also note the guidance, again derived from the authorities, that “Once a party is aware that proceedings have been served, they have to be taken to expect to receive communications personally from the opposing party and/or the court“.
    1. In my judgment, Mr. Ullah has not demonstrated that he had good reason not to attend. He was aware of the proceedings. He had sought but failed to obtain legal advice. He received but failed to act on the order giving him notice of the hearing on 4th March 2021. I have taken into account the language barrier when coming to my decision, but that is not of itself a “good reason” not to attend the hearing. For the court to deal with cases such as this justly and at proportionate cost, and to give effect to the overriding objective, litigants who are aware of proceedings served on them must engage with those proceedings. The rules apply to them, as they do to all litigants, and the court may consider giving extensions of time, or relief from sanctions, in accordance with the relevant tests.
    1. In my judgment, for those reasons the limb in sub-paragraph 5(b) of rule 39.3 is not met. There was no good reason not to attend the hearing. This application must therefore fail.
  1. I make no findings in respect of whether Mr Ullah had a reasonable prospect of success at the trial. That is a low bar to reach for an applicant (just as it would have been a high bar for an applicant seeking summary judgment), but I make no determination on that point, nor do I need to exercise my residual discretion. I have found that there was no good reason for not attending the hearing, and so I cannot grant this application.
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