Jesus Everlasting Foundation Ministry International v McKinde

Relief from sanctions following non-attendance at a case management hearing is governed by Civil Procedure Rules 1998, rule 3.9, rather than the more stringent rule 39.3 applicable to judgment after trial in a party’s absence. An appellate judge may review the matter afresh under the correct test where the written materials and transcript place the judge in no worse position than the original decision-maker. Remittal is unnecessary if the appellate judge can determine the outcome. Appellate courts will not normally interfere with case-management assessments merely because a legitimate factor was given too much or too little weight. A second appeal requires an important point of principle or practice or another compelling reason.

Jesus Everlasting Foundation Ministry International v McKinde concerned defendants whose defence and counterclaim had been struck out after they failed to attend a case management hearing. District Judge Dudley refused relief from sanctions. On appeal, Mr Recorder Lowe considered the matter under rule 3.9 and dismissed the appeal. The defendants renewed their application for permission to bring a second appeal, arguing that the wrong legal test had been applied, that their explanation was unsupported by evidence, and that excessive weight had been given to previous non-compliance. The central issues were whether the Recorder could review the matter afresh under the correct test and whether any proposed appeal met the second-appeal threshold.

1. Application refused. The renewed application did not raise an important point of principle or practice, nor was there any other compelling reason for a second appeal. The proposed grounds did not even reach the threshold for a first appeal.
2. District Judge Dudley should have directed himself specifically by reference to rule 3.9. The Recorder was nevertheless entitled, and right, to review the matter under the correct test rather than remit it. He had the written materials and a transcript of the hearing, and was in no worse position than the District Judge to decide the outcome.
3. The Recorder correctly treated the breach as non-trivial, found no good reason for the failure to attend, and considered all the circumstances, including the defendants’ previous failures to comply with court orders. Those matters justified refusing relief from sanctions under Civil Procedure Rules 1998, rule 3.9.
4. The evidential complaint did not disclose an error of substance. The draft or later witness statement contained only a brief explanation that the dates had been mixed up. The fuller explanation emerged in questioning before the District Judge. The Recorder was aware of everything advanced by way of explanation.
5. An appellate court will not realistically interfere with a case-management decision merely because the judge attached greater or lesser weight to a legitimate factor than the appellate court might have done.

• Court of Appeal (Civil Division): On 25 February 2016, the renewed application for permission to bring a second appeal was refused in [2016] EWCA Civ 249 .
• Southend County Court: Mr Recorder Lowe dismissed the appeal from the refusal of relief from sanctions on 25 March 2015.
• Southend County Court: District Judge Dudley refused relief from sanctions on 9 April 2014.