Alliance & Leicester Plc v Hussein & Ors

Where a party fails to attend a trial and judgment is entered in that party’s absence, the appropriate first remedy is ordinarily an application to the trial court to set the judgment aside under Civil Procedure Rules, rule 39.3(3). An appeal to the Court of Appeal is not the proper route for introducing evidence and submissions that were not placed before the trial judge. Permission to appeal should therefore be refused where no error is identified on the evidence and submissions available when the order was made.

Alliance & Leicester Plc brought possession and mortgage enforcement proceedings against Mr and Mrs Hussein. The bank accepted that Mrs Hussein’s signature on its mortgage application was forged, but sought to preserve the earlier valid mortgage as a subrogated security. The defendants alleged fraud and advanced counterclaims against the bank and other parties.

The trial was listed in the Central London County Court. After earlier unsuccessful applications to vacate the trial date, neither defendant attended the trial before His Honour Judge Cooke QC on 9 July 2001. The judge proceeded in their absence, upheld the bank’s claims and dismissed the defendants’ claims. Mr Hussein sought permission to appeal. The central issue was whether an appeal was appropriate when the proposed grounds depended on evidence and submissions not presented at trial.

1. Application refused. Lord Justice May dismissed Mr Hussein’s application for permission to appeal. No basis was shown for concluding that the county court order was wrong on the evidence and submissions available to His Honour Judge Cooke QC.
2. The proposed appeal depended substantially on allegations of fraud, negligence, procedural unfairness and other matters which the defendants had not presented at the trial because they were absent. The Court of Appeal should not be used to introduce evidence and arguments that were not before the trial judge.
3. Where judgment is given against a party who failed to attend the trial, Civil Procedure Rules, rule 39.3(1) permits the court to proceed in that party’s absence, while rule 39.3(3) permits the absent party to apply to set the judgment or order aside. The equivalent surviving County Court Rules provisions provide a broadly similar route.
4. The proper first court for a challenge to an order made in a party’s absence is the court which made the original order. Lord Justice May adopted the reasoning in Noel-Johnson v Gopee, where Judge LJ stated that the applicant’s attention should first be directed to the original court rather than the Court of Appeal.
5. Any merits of the defendants’ allegations, and whether justice required them to be heard, were matters for an application to set aside the judgment under rule 39.3(3). The Court of Appeal expressed no view on those merits.

Order: Application for permission to appeal refused.

• Court of Appeal (Civil Division): Permission to appeal from the judgment of His Honour Judge Cooke QC was refused on 22 October 2001.
• Central London County Court: His Honour Judge Cooke QC proceeded with the trial in the defendants’ absence on 9 July 2001, upheld Alliance & Leicester’s claims and dismissed the defendants’ claims and counterclaims.
• Intervening procedural decisions: Judge Wakefield dismissed an application to vacate the trial date on 12 June 2001. Ferris J dismissed an appeal from that order on 5 July 2001.