Carlton Advisors v Dorchester Holdings Ltd

Under CPR 23.11, the court may set aside an order made in a party’s absence, but relief is discretionary. A party seeking relief must provide a satisfactory explanation for non-attendance and continued procedural default, and must comply with the overriding objective and court directions. Failure to obtain instructions, counsel or further information does not justify refusing to serve evidence ordered by the court. The court may grant relief conditionally, including by requiring compliance with an expedited timetable, payment of costs and a payment into court under CPR 3.1(5). That jurisdiction must be exercised cautiously. The court need not first determine that the defaulting party has a weak defence.

The claimant applied for relief following the defendants’ failure to attend a hearing on 25 July 2014. At that hearing the court had made orders concerning witness statements and related trial directions, including extending the claimant’s time for service and requiring the defendants to serve their evidence by 1 August 2014.

The defendants did not attend the earlier hearing, did not serve their witness statements, and sought to have the order set aside and a revised timetable imposed. They relied on difficulties in briefing counsel, obtaining instructions and receiving further information. The central issues were whether relief should be granted under CPR 23.11 and, if so, on what conditions.

1. The application under CPR 23.11 was granted conditionally. The court considered that it would have been justified in refusing relief altogether because the defendants had failed to attend the earlier hearing, had not served their witness statements by the ordered date, and had not sought a variation of the timetable.

2. The defendants’ explanations were unsatisfactory. Solicitors could have attended without counsel, and difficulties in obtaining instructions did not justify non-compliance. A party cannot decline to comply with an order requiring witness statements merely because a request for further information remains unanswered. The proper course is to seek agreement or apply to vary the order.

3. The court also had power under CPR 3.1(5) to require a party which had failed, without good reason, to comply with a rule, practice direction or relevant pre-action protocol to pay money into court. That jurisdiction had to be exercised cautiously. It was unnecessary to determine that the defendants had little prospect of defending the claim.

4. Relief was therefore granted on conditions that the defendants comply with the claimant’s proposed timetable, pay existing and newly ordered costs within 14 days, and deposit £25,000 in court within 14 days. The claimant was permitted to proceed economically with steps due in that period pending payment.

Not an appeal. The judgment itself does not state any prior appellate history.