Tinkler & Anor v Elliott

Under rule 39.3(5) of the Civil Procedure Rules, promptness is a mandatory condition for setting aside a judgment entered in a party’s absence. The applicant must act with all reasonable celerity in the circumstances, show a good reason for non-attendance and establish a reasonable prospect of success at trial. The assessment is evaluative rather than discretionary. Health problems and litigant-in-person status may be relevant, but only close to the margins; ignorance of available procedural steps does not ordinarily justify prolonged delay. If all conditions are satisfied, any residual discretion is narrow. An appellate court reviews rather than rehears the decision and interferes only for error.

Mr Tinkler and WADI obtained judgment and an injunction at a trial before HH Judge Tetlow on 15 March 2010, when Mr Elliott did not attend. The order was served that day. After subsequent applications, Mr Elliott obtained permission to apply to set aside the judgment. Sharp J, in a reserved judgment dated 15 March 2012, granted the application. She accepted that his mental-health difficulties and status as a litigant in person justified the delay, and found that he had a good reason for non-attendance and a reasonable prospect of success.

Mr Tinkler and WADI appealed. The central issue was whether an application made about 18 months after notice of the judgment satisfied the mandatory promptness requirement in rule 39.3(5).

The appeal was allowed. The findings that Mr Elliott had a good reason for not attending the trial and a reasonable prospect of success were not challenged. Promptness was the only issue.

1. Rule 39.3(5) of the Civil Procedure Rules imposes three cumulative requirements. The applicant must act promptly, have a good reason for non-attendance and have a reasonable prospect of success at trial. Promptness is a mandatory precondition. Any residual discretion arises only after all three requirements are satisfied and is then narrow.
2. The authorities support a requirement that the applicant act with all reasonable celerity in the circumstances. The court’s assessment is essentially evaluative, not an exercise of broad discretion. Regency Rolls Ltd v Carnall [2000] EWCA Civil 379 was treated cautiously because the observations on promptness were strictly obiter, although the formulation of all reasonable celerity was adopted. Bank of Scotland v Periera [2011] EWCA Civ 241 supported the mandatory structure and the narrow residual discretion.
3. A litigant-in-person’s circumstances may affect the assessment of promptness, but only close to the margins. Mere failure to understand or appreciate the procedural options available for months does not justify excessive indulgence. An opponent is entitled to assume finality. Mr Elliott’s genuine health difficulties did not establish promptness because he remained capable of active litigation during the relevant period.
4. The Court of Appeal’s function was one of review, not rehearing. Sharp J had gone wrong in treating the matter as a special case by making excessive allowance for litigant-in-person status.
5. The delay meant that the promptness requirement was not satisfied. The judgment and order made in Mr Elliott’s absence therefore could not be set aside. A separate application for permission to appeal, including an extension of time, remained a discretionary route.

• Court of Appeal (Civil Division): appeal from Sharp J allowed. The application to set aside failed because it was not made promptly.
• High Court, Manchester District Registry (Sharp J): by reserved judgment dated 15 March 2012, set aside the judgment and order made by HH Judge Tetlow.
• Trial before HH Judge Tetlow: on 15 March 2010, judgment, a permanent injunction and related orders were made in Mr Elliott’s absence.