Zambia v Meer Care & Desai (a firm) & Ors

Where a defendant did not participate in a trial and later seeks to rely on fresh evidence on appeal, the appellate court should first apply, by analogy, the requirements of Civil Procedure Rules 1998, rule 39.3(5): promptness, a good reason for non-attendance and a reasonable prospect of success. Good reason is assessed in the round, with the overriding objective and fair-hearing rights in mind. The absence of a proper pre-action letter, language difficulties and voluminous untranslated papers may be important. If the evidence is capable of belief and could affect the result, it may be admitted, the judgment set aside on a limited basis and the matter remitted for trial. The principles in Ladd v Marshall remain relevant, but the rule 39.3 conditions take priority in this unusual procedural setting.

The Attorney General of Zambia obtained judgment in the High Court against Antonino Basile, trading as Boutique Basile, in claims arising from payments made from Zambian government funds. Basile had been served with the claim documents but took no part in the proceedings or trial. The High Court entered judgment against him for conspiracy and dishonest assistance, together with interest.

After receiving the orders, Basile appealed out of time and sought permission to rely on further invoices and evidence explaining his non-attendance. The appeal concerned whether the Court of Appeal could deal with the application under rule 52.11 and, by analogy, rule 39.3, and whether the evidence showed a good reason for non-attendance and a reasonable prospect of success.

The High Court decision is reported at [2007] EWHC 952 (Ch).

The appeal was allowed unanimously. The Court of Appeal admitted the additional evidence, set aside the specified parts of the High Court orders and remitted the claim against Basile to Peter Smith J for case management directions and a fresh trial.

1. Where a party did not attend or participate in a trial and seeks on appeal to rely on evidence that could have supported an application to set aside the judgment, the court may apply, by analogy, the three conditions in Civil Procedure Rules 1998, rule 39.3(5). The applicant must act promptly, have a good reason for non-attendance and show a reasonable prospect of success.
2. Good reason is not determined by rigid criteria. The court must examine the evidence, identify the true reason for non-attendance and assess it in the round. An honest or genuine reason is insufficient by itself. The overriding objective and article 6 of the European Convention on Human Rights require a fair and proportionate approach. The absence of a pre-action letter, Basile’s limited English and the volume of untranslated documents were important factors. His failure to obtain legal advice did not automatically defeat his case.
3. The further invoices were capable of belief and, if genuine, could defeat the claim as pleaded. It was therefore appropriate to admit them, set aside the judgment to the necessary extent and remit the matter. The Court of Appeal should not itself determine the ultimate merits where credibility and cross-examination require a trial.
4. The principles in Ladd v Marshall remained relevant to the discretion under rule 52.11, but the rule 39.3 conditions had to be considered first. The diligence requirement substantially overlapped with those conditions.
5. The findings concerning the wider Zamtrop conspiracy and the government character of the money remained in force, subject to the order defining precisely which findings stood. The finding that Basile was party to the conspiracy was set aside. The court also observed, obiter, that the money had and received claim appeared to be a simpler and unanswered alternative on the material before the trial judge.

1. High Court of Justice, Chancery Division: Judgment was entered against Basile for conspiracy and dishonest assistance, with interest and costs, in the decision reported at [2007] EWHC 952 (Ch).
2. Court of Appeal (Civil Division): The appeal was allowed. Additional evidence was admitted, relevant parts of the orders were set aside and the claim against Basile was remitted for a fresh trial.