Thomson Directories Ltd v Planet Telecom Plc & Ors

Under CPR r.39.3(5), an applicant seeking to set aside a judgment given in their absence must satisfy all three requirements: promptness, a good reason for non-attendance, and a reasonable prospect of success. Failure to satisfy one or two requirements is sufficient to defeat the application. Promptness requires all reasonable celerity in the circumstances, and compliance is assessed by reference to the steps needed to issue the application, not merely informal notification of an intention to apply. Prejudice to the other party is not a material consideration under the rule. A claimed medical difficulty must genuinely prevent attendance; concern that the applicant may perform less effectively does not amount to a good reason.

The claimant had obtained a consent order under which the defendants submitted to an inquiry as to damages for alleged infringement of database rights and copyright. At the inquiry, Deputy Judge Steinfeld refused the fourth defendant’s application to adjourn, proceeded in his absence, and entered judgment for substantial damages and interest.

The fourth defendant later applied under CPR r.39.3 to set aside that judgment. He relied on delay in issuing the application and on alleged acute back pain as the reason for failing to attend the hearing. The central issues were whether he acted promptly and had a good reason for non-attendance.

1. Application dismissed. The fourth defendant failed to satisfy the first two mandatory requirements of CPR r.39.3(5). It was therefore unnecessary to determine whether he also had a reasonable prospect of success at the inquiry.
2. Regency Rolls Limited v Carnall [2000] WL 33148953 (CA) established that all three requirements in CPR r.39.3(5) must be met. One or two requirements are insufficient. The rule imposes a stringent test and does not preserve a broad discretion to set aside a regular judgment.
3. Promptness means acting with all reasonable celerity in the circumstances. The defendant had notified the claimant’s solicitors of an intention to apply, but had not properly issued or served the application. By 3 April he knew that no proper application had been launched. The subsequent failure to pay the necessary fee and issue the notice within the period ordered by Lloyd J, without explanation, meant that the application was not prompt.
4. The defendant also failed to show a good reason for not attending. The medical certificate merely excused him from work and did not establish that he was unable to attend court. His doctor had not physically examined him, had not said that he could not give evidence while seated, and considered that travel was possible. The defendant’s unsupported concern that pain might affect his concentration did not amount to a good reason under CPR r.39.3(5)(b).
5. The court rejected the submission that breach of Lloyd J’s timetable automatically barred the application. The order was not an unless order. The breach was instead a factor relevant to whether the defendant had acted promptly. Prejudice to the claimant was of little relevance to the rule’s requirements.

The judgment records earlier procedural orders in the same litigation, including the damages judgment of Deputy Judge Steinfeld and subsequent orders made by Lloyd J. It is a first-instance decision on the fourth defendant’s application to set aside the damages judgment.