Pickard & Anor v Roberts & Anor

Whether a hearing is a trial for CPR 39.3 depends on its context, purpose and the procedural steps leading to it, rather than the formal label or originating procedure. A hearing intended finally to determine disputed issues, following directions for evidence, disclosure and cross-examination, may be a trial even if listed as a final hearing. Where CPR 39.3 applies, an absent party must satisfy all three requirements in rule 39.3(5): promptness, a good reason for non-attendance and a reasonable prospect of success. The court must also consider the overriding objective, but the requirements generally take precedence over the broader discretion under CPR 3.9, absent unusual and highly compelling circumstances.

The appellants, trustees in bankruptcy, appealed against District Judge Hay’s order setting aside an order made by Deputy District Judge Paul after the second respondent, Mrs Roberts, failed to attend a two-day hearing concerning the trustees’ application for declarations and possession and sale of property.

The hearing followed extensive procedural directions, including provision for evidence, disclosure and cross-examination. District Judge Hay concluded that Mrs Roberts had no good reason for failing to attend but set aside the order under CPR 3.9, considering that she had a real prospect of success and that there might otherwise be a miscarriage of justice. The issues on appeal were whether the hearing was a trial for the purposes of CPR 39.3, whether Mrs Roberts had a good reason for non-attendance, and what discretion remained if it was not a trial.

1. Appeal allowed. The hearing on 26 February 2015 was a trial within CPR 39.3. The correct question depended on the context, the purpose of the hearing and the procedural orders made beforehand, not on the form of the originating process or the label used for the listing. The proceedings had been prepared for final determination, and both parties understood that the disputed issues would be finally resolved.
2. Where CPR 39.3 applies, rule 39.3(5) provides that the court may set aside the order only if the absent party acted promptly, had a good reason for not attending and has a reasonable prospect of success. The requirements are cumulative. District Judge Hay was wrong to treat the good-reason requirement as merely one factor within a general balancing exercise.
3. Mrs Roberts had no good reason for failing to attend. She knew that the hearing was listed for 26 February 2015. Her evidence addressed an erroneous date appearing on the order and did not explain her failure to attend on the actual hearing date. Her stated reason was therefore spurious.
4. The court considered the overriding objective, including finality, fairness, delay and the proportionate use of court resources. The flexible approach available in exceptional possession-order cases did not apply. There were no unusual and highly compelling circumstances justifying departure from the approach in Hackney LBC v Findlay. Although Mrs Roberts was not shown to fail the merits requirement, failure to establish a good reason was sufficient to prevent the order being set aside.

• High Court (Chancery Division): appeal from District Judge Hay’s order of 28 July 2015 allowed. The order made by Deputy District Judge Paul on 26 February 2015 should stand.