Johnson v Sinclair

To set aside a judgment entered after a party’s failure to attend a trial, the applicant must satisfy all three requirements in CPR 39.3(5): prompt action, a good reason for non-attendance, and a reasonable prospect of success. The requirements are cumulative conditions precedent. A trial for this purpose includes a hearing at which the court assesses quantum after liability has already been determined. Promptness means acting with all reasonable speed in the circumstances, taking account of matters such as litigant-in-person status and ill health. The court must examine the true reason for non-attendance in the round. In assessing prospects, it may consider the substance of the pleaded defence rather than its form alone.

The claimant sought repayment of loans and payment for work connected with the defendant’s property and business. A default judgment established liability, and a later hearing assessed the amount due in the defendant’s absence. Judgment was entered for £30,679.25 plus costs.

The defendant made a further application to set aside that judgment, relying on ill health and an amended defence alleging illegality. District Judge Griggs dismissed the application. HHJ Neligan dismissed the defendant’s appeal, holding that she had not acted promptly, had not shown a good reason for failing to attend, and had no reasonable prospect of success. The central issue before the Court of Appeal was whether that exercise of discretion was plainly wrong.

1. Appeal dismissed. The Court of Appeal upheld the dismissal of the application to set aside the judgment entered on 29 June 2006.
2. CPR 39.3 applied. The hearing was a trial within the rule because liability had been determined by an interim judgment, while the court still had to hear evidence and decide quantum. The rule is wide enough to cover a trial of quantum as well as liability.
3. The requirements in CPR 39.3(5)(a)–(c) are cumulative conditions precedent. The court may grant relief only if the applicant acted promptly after learning of the judgment or order, had a good reason for non-attendance, and had a reasonable prospect of success at trial. The court followed the approach in Regency Rolls Ltd v Carnall [2000] EWCA Civ 379.
4. Promptness requires action with all reasonable speed in the circumstances. The defendant’s status as a litigant in person and her poor health were relevant considerations, but the delay between attending court too late for the first set-aside hearing and making the later application justified the finding that she had not acted promptly.
5. The approach to good reason required the court to examine all relevant evidence, identify the true reason for non-attendance, and assess the matter in the round, consistently with the overriding objective. This approach, stated in Brazil v Brazil [2002] EWCA Civil 1875, was applied. The defendant knew the trial date, the proposed operation had been postponed, and she supplied no medical evidence showing that she was unfit to attend on the hearing date. The finding that she had not shown a good reason was therefore sustainable.
6. Although the amended defence disclosed an arguable legal defence, the court was entitled to assess its substance, including the lateness and vagueness of the allegations and the absence of supporting evidence. The conclusion that it had no reasonable prospect of success was open to the courts below.
7. The process did not infringe the defendant’s rights under Article 6 of the European Convention on Human Rights.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 667, the appeal was dismissed. The court held that District Judge Griggs had correctly applied CPR 39.3(5) and that HHJ Neligan was right to uphold that decision.
• Plymouth County Court: HHJ Neligan dismissed the defendant’s appeal from District Judge Griggs’s refusal to set aside the judgment entered in her absence.
• County court: District Judge Griggs dismissed the defendant’s further application to set aside the judgment entered after the quantum hearing on 29 June 2006.