Emojevbe v Secretary of State for Transport

On an application under rule 39.3(3) of the Civil Procedure Rules 1998, whether a party had a good reason for missing a trial requires a fact-sensitive assessment of all relevant circumstances. The court should apply less rigour than it ordinarily applies to an application for an adjournment because refusal may leave the applicant without any adjudication on the merits.

Medical evidence remains subject to scrutiny, and a bare fit note may be insufficient. The court must nevertheless consider the genuineness and practical effects of the illness, the party’s procedural history, the consequences of refusing relief and whether the claim has a reasonable prospect of success.

The appellant claimed that the Driver and Vehicle Licensing Agency negligently returned three passports by first-class post instead of using the special-delivery envelope he had supplied. The passports were lost, allegedly causing substantial business losses.

After the appellant sought a medical adjournment and failed to attend trial, HHJ Carr refused the adjournment and entered summary judgment for the respondent. Jay J dismissed the appellant’s challenge on 22 April 2015, holding that he had not shown a good reason for non-attendance under rule 39.3(5)(b) of the Civil Procedure Rules 1998. He nevertheless considered that the negligence claim had a reasonable prospect of success.

The appellant appealed on the good-reason issue. The respondent cross-appealed on the negligence claim’s prospects of success.

1. Appeal allowed and cross-appeal dismissed. An appellate court should be slow to interfere with a lower court’s fact-sensitive assessment of whether a litigant had a good reason for missing trial. The assessment must nevertheless apply the correct legal approach under rule 39.3(5) of the Civil Procedure Rules 1998.

2. An application to set aside a judgment entered following non-attendance differs materially from an application to adjourn. Refusal to set aside may deprive the applicant of any adjudication on the merits. The less rigorous guidance in Bank of Scotland plc v Pereira [2011] EWCA Civ 241, as explained and applied in TBO Investments Ltd v Mohun Smith and Another [2016] EWCA Civ 403, therefore governed the application.

3. Medical evidence must still be scrutinised. A pro-forma fit note may be insufficient, and being a litigant in person does not change the applicable test. The court should, however, recognise both the difficulty an unrepresented litigant may encounter in obtaining a detailed medical report and the frequency of late, unmeritorious adjournment applications.

4. Jay J had focused almost entirely on whether the appellant was physically capable of reaching court. That was too narrow. The relevant circumstances included his previous attendance record, the genuine knee condition that later required surgery, the effect of pain on his ability to conduct the trial in person, the absence of any previous adjudication on the merits and the finding that the negligence claim had reasonable prospects. Examining the evidence in the round, the appellant had shown a good reason for non-attendance.

5. The respondent’s reliance on the statutory immunity in section 90 of the Postal Services Act 2000 did not eliminate the reasonable prospect of a negligence claim. The respondent had invited the use of a special-delivery envelope but returned the passports by first-class post. It could not at this stage rely on the postal operator’s immunity to answer its own alleged failure to use the agreed means of return.

6. The negligence claim was remitted to the County Court and stayed for four months to permit mediation. The court cautioned that the claimed consequential damages appeared wholly unrealistic.

1. Court of Appeal (Civil Division): The appeal was allowed and the respondent’s cross-appeal was dismissed. The negligence claim was remitted to the County Court and stayed for four months for mediation: [2017] EWCA Civ 934.

2. High Court, Queen’s Bench Division: Jay J dismissed the appellant’s appeal on 22 April 2015. He held that the appellant had not shown a good reason for missing trial, but declined to find that the negligence claim lacked a reasonable prospect of success. No neutral citation is stated.

3. Central London County Court: HHJ Carr refused a medical adjournment and entered summary judgment for the respondent in the appellant’s absence on 26 September 2012.