Morgan v Smalley

Under CPR 39.3(5), a party who failed to attend trial may set aside the resulting judgment only by showing that the application was made promptly, there was a good reason for the absence, and there is a reasonable prospect of success at trial. A prolonged delay remains excessive despite efforts to obtain legal representation. An appellate court should not interfere with a discretionary decision where no error is shown. On these facts, late legal-aid difficulties did not engage Article 6 or make refusal of intervention disproportionate.

The claimant appealed against Ferris J’s refusal to adjourn her application to set aside judgments entered after she failed to attend the trial of consolidated proceedings concerning her business affairs with the defendant. The trial had been fixed for 14 May 2001. An earlier application to vacate the hearing had failed, and her solicitors came off the record on the day of trial. The application to set aside was eventually made in August 2002. Ferris J refused an adjournment and dismissed the application, finding that the claimant had delayed for about 15 months and had produced no significant evidence demonstrating a reasonable prospect of success, although he accepted that she had a good reason for not attending. The central issues were whether the discretion to adjourn and the requirements of CPR 39.3(5) had been properly applied, and whether Article 6 required intervention.

Appeal dismissed with costs. Ward LJ delivered the judgment, with Mummery LJ and Rix LJ agreeing.

1. The application to set aside was governed by CPR 39.3(5). The court could grant it only if the applicant had acted promptly after learning of the judgment or order, had a good reason for failing to attend trial, and had a reasonable prospect of success at trial. These were cumulative requirements.
2. The claimant’s delay of approximately 15 months was grossly excessive. Her attempts to obtain solicitors and public funding did not satisfy the requirement of prompt action. Ferris J was entitled to treat this factor as decisive against the application.
3. The claimant was given the benefit of an assumption that her medical evidence established a good reason for failing to attend. That did not overcome the failure to act promptly or the weakness of the proposed case.
4. The material before the court contained no significant additional evidence and did not show a compelling answer to the claims. Ferris J was therefore entitled to conclude that the application, as formulated, had no reasonable prospect of success.
5. In deciding whether to adjourn, the judge had to consider both the claimant’s position and the interests of the other parties, who had judgments about 18 months old and had been unable to enjoy their fruits. The refusal to adjourn and the refusal to set aside involved no error in the exercise of discretion and were not plainly wrong.
6. The reference to Article 6 was an aside to the crux of the case. The court nevertheless considered that the legal-aid difficulties did not engage the fair-trial guarantee and that refusing intervention at that late stage was not disproportionate.

1. Court of Appeal (Civil Division): The appeal was dismissed with costs. [2004] EWCA Civ 358
2. High Court, Chancery Division: Ferris J refused an adjournment and dismissed the application to set aside the judgments entered by David Oliver QC, sitting as a deputy High Court judge, after the claimant failed to attend trial.