Ivanhoe Mines Ltd v Gardner

When deciding whether to relist an application heard in a party’s absence, the court has a broad discretion. Relevant considerations include promptness, the reason for non-attendance and the applicant’s realistic prospects of overturning the order. These factors are weighed together rather than treated as mandatory requirements.

The court should investigate why the applicant lacked knowledge of the hearing. A party who deliberately makes communication difficult cannot ordinarily expect a second hearing merely because the resulting order was made in their absence. The court must avoid conducting a mini-trial when assessing whether a proposed defence has a real prospect of success.

The claimant obtained an order requiring the defendant to pay tax and costs under a Tomlin Order made in 2009. The order was made after the defendant failed to attend the claimant’s enforcement application. The defendant later applied under CPR 23.11 and related provisions to relist and rehear that application.

The defendant argued that service on former solicitors was invalid, that he had a good reason for not attending, and that he had a defence with a real prospect of success. The central issues were whether the application had been validly served, whether the defendant’s absence was justified, and whether the balance of factors favoured relisting.

1. Application dismissed. The defendant acted promptly after learning of the order, but failed to establish a good reason for not attending the original hearing and had only a weak arguable defence.
2. Under CPR 23.11, the court’s discretion to relist an application heard in a party’s absence is broad. The relevant considerations include promptness, the reason for non-attendance and whether the applicant has a reasonable prospect of overturning the order. They are matters to be weighed in the balance, not cumulative conditions. The approach in Forcelux Ltd v Binnie [2009] EWCA Civ 854 was applied.
3. The Tomlin Application was validly served on the defendant’s solicitors. The underlying proceedings had been stayed by the Tomlin Order, not ended, and the solicitors remained on the record because no application had been made to remove them.
4. The defendant had no good reason for failing to attend. The court examined why he had not known of the hearing, following the approach in Brazil v Brazil [2002] EWCA Civ 1135 and Estate Acquisition and Development Ltd v Wiltshire [2006] EWCA Civ 533. His conduct supported the inference that he wished to avoid communication concerning the tax liability and had not left an effective means of contacting him.
5. The proposed defence concerning missing tax documentation had a real, although weak and borderline, prospect of success. The court was required to avoid conducting a mini-trial. The proposed construction arguments did not justify relisting. The tax obligation formed part of the Tomlin settlement through clauses 8 and 10, although it also arose under the Consent Award; alternatively, it could have been enforced under section 66 of the Arbitration Act 1996.
6. In the circumstances, relisting would not be fair, just or consistent with the overriding objective.

First-instance application to set aside or relist an enforcement order made on 23 November 2018. The application was dismissed.