Boothe-Chambers v Dymond

When deciding whether to rehear an interim application determined in a party’s absence, the court may apply principles analogous to those governing relief from sanctions and retrials. Relevant considerations include whether the party had a good reason for non-attendance, acted promptly, and has a reasonable prospect of success. The court must also address the wider circumstances and the overriding objective, including compliance with other orders, responsibility for the default, and prejudice or consequences for each party. An appellate court will not interfere with the exercise of that discretion unless it was demonstrably wrong.

The appellant brought a county court claim for damages arising from the respondent’s alleged failure to refurbish premises after a fire. An unless order required disclosure of business accounts and tax documents, failing which the claim would be struck out. The appellant did not attend the subsequent hearing and failed to comply within time.

A district judge later reinstated the claim. His Honour Judge Roach allowed the respondent’s appeal, struck out the claim and ordered costs. The appellant appealed, challenging the approach taken to his absence, prospects of success and extension of time.

1. The appeal was dismissed. Penry-Davey J gave the first judgment, with which Tuckey LJ agreed.

2. Although CPR Part 27.11 did not technically apply because the claim was multi-track, the judge was entitled to adopt its general approach. The relevant framework was consistent with the approach identified in Biguzzi v Rank Leisure [1999] 1 WLR 1926.

3. In deciding whether to rehear an interim application determined in a party’s absence, the court may apply analogous principles under CPR Part 23.11(2) and CPR Part 3.1(2)(a). The principal considerations were whether there was a good reason for non-attendance, whether the applicant had a reasonable prospect of success, and whether an extension of time was appropriate in all the circumstances.

4. The court also had to give effect to the overriding objective in CPR Part 1.1. In considering relief from the consequences of non-compliance, the matters identified in CPR Part 39(1) were relevant, including promptness, intentionality, explanation, compliance with other orders, responsibility for the default, and the effect on each party.

5. The appellant had given inconsistent explanations for his absence, had no good reason for failing to attend, and had not demonstrated a reasonable prospect of establishing the claimed economic loss. His dilatory conduct and breach of the unless order also justified refusing an extension. The judge’s exercise of discretion was not demonstrably wrong.

• Court of Appeal (Civil Division): allowed an appeal from the order of His Honour Judge Roach in the Barnstaple County Court, which had struck out the appellant’s claim. The Court of Appeal dismissed the appeal and ordered the respondent’s costs.
• Barnstaple County Court: His Honour Judge Roach allowed the respondent’s appeal against District Judge Turner’s order reinstating the claim, struck out the claim and ordered costs.