Blake & Ors v Stewart & Ors

An application to set aside an order made in a party’s absence must be made promptly. The court has no discretion under CPR 39.3(5) to overlook that requirement. Procedural irregularities in joinder or service do not necessarily deprive an order of effect. The court may refuse relief where the applicant knew of the proceedings, understood the issues, participated in supporting the relevant case, and delayed inexcusably. It may also dispense with service in exceptional circumstances. A person who deliberately leaves the conduct of a representative claim to others cannot ordinarily revive the same dispute by a collateral claim. Such proceedings may amount to an abuse of process.

The claim concerned ownership of property and assets associated with a Nottingham congregation. The third defendant had been joined as a representative defendant under CPR 19.6, but alleged that the joining order and other documents had not been properly served. The preliminary issues were resolved by an order declaring that the property and assets belonged to the claimant charity.

More than four years later, the third defendant applied for a declaration that the order did not bind him, or for it to be set aside, relying on procedural irregularities, lack of service, absence from the hearing and the alleged merits of the congregation’s case. The central issues were whether relief was available under CPR 39.3, whether the irregularities deprived the order of effect, and whether any renewed claim would be abusive.

1. The application was dismissed. The delay was inexcusable and fatal to the application on every basis advanced. The applicant had known of the proceedings, the preliminary issues and the hearing date. He had also provided evidence supporting the case advanced by the other defendants.
2. Under CPR 39.3(5), an applicant who failed to attend the trial must show that he acted promptly, had a good reason for not attending, and had a reasonable prospect of success. The court held that the applicant failed the promptness requirement. His absence following the other defendants’ capitulation did not constitute a good reason, since he knew or ought to have appreciated that the congregation’s case would not otherwise be advanced.
3. The court accepted that the alleged separate-charity case was more than fanciful and would require a contested trial. The alternative case that the property was held for members of an unincorporated non-charitable association had no realistic prospect of success, in light of the transfer’s express reference to a charitable trust.
4. Following Nelsons v Clearsprings (Management) Limited [2007] 1 WLR 962, an irregular judgment is not necessarily required to be set aside. Inexcusable delay may justify refusal of relief. If necessary, service could be dispensed with under CPR 6.16. The applicant’s knowledge and participation made the circumstances exceptional, consistently with the approach in Abela & Others v Baadarani [2013] 1 WLR 2043.
5. The court rejected the contention that non-service of the claim form necessarily meant that the applicant never became a party. The rules required service of the joining order, but did not in terms require service of the claim form on a new party where no consequential direction had been made. The interaction between CPR 19.4(5), CPR 19.4(6) and CPR 19APD3.3 did not alter the result, particularly because any attempt to revive the dispute would be an abuse of process.
6. Fresh proceedings by the applicant or associated congregation members would be an impermissible collateral attack on the order and an abuse of process. The court also rejected the suggestion that the applicant could not be treated as a party merely because he had given evidence through solicitors acting for defendants with whom he shared a community of interest. A party may in principle be a compellable witness at the suit of another party: Halford v Brookes & Another (CA, 31 July 1981).