KD v Gaisford

An application under CPR 39.3 requires the applicant to establish each of three cumulative conditions: promptness, a good reason for failing to attend trial, and a reasonable prospect of success at trial. A litigant in person who knows of the trial date and the consequences of non-attendance must take practical steps in advance to secure attendance, representation, a transfer to suitable prison accommodation, or a video link. Last-minute correspondence does not establish good reason. In assessing reasonable prospects, the court may rely on an earlier criminal conviction, the available contemporaneous evidence, and consistency in the claimant’s account. Under Limitation Act 1980, section 33(1), the central question is whether the lapse of time made a fair trial no longer possible.

The claimant obtained judgment after a trial at which the defendant was absent. The court found that the defendant had sexually assaulted the claimant and awarded damages of £53,152. The defendant subsequently applied under CPR 39.3(3) to set aside the judgment, asserting that he had wished to attend but could not arrange attendance, representation, or a video link from prison.

The defendant also argued that his absence had prevented cross-examination on limitation and on alleged inconsistencies in the claimant’s evidence. The application required determination of whether it was prompt, whether there was a good reason for non-attendance, and whether the defendant had a reasonable prospect of success.

The earlier judgment was KD v Gaisford [2019] EWHC 339 (QB).

1. Application dismissed. The defendant satisfied the promptness requirement but failed to satisfy the cumulative requirements under CPR 39.3. The application therefore fell at the second hurdle.
2. The defendant had no good reason for failing to attend trial. He knew the trial date, his right to attend and be represented, and the likely application for the trial to proceed in his absence. He could and should have taken practical steps well before the end of January 2019 to arrange a prison transfer, a video link, or legal representation. His late letter and post-trial email did not give the court a practical opportunity to respond.
3. The defendant’s asserted belief that an adjournment had been granted or would be granted because his cheque had been cashed was unreasonable. His correspondence showed that he understood representation might still be required. The court rejected the submission that he had engaged practically with the proceedings.
4. In any event, the defendant had no reasonable prospect of success at trial. On limitation, the relevant question under section 33(1) of the Limitation Act 1980 was whether the lapse of time meant that a fair trial was no longer possible. The criminal trial had already examined the underlying facts, the claimant’s evidence was available, and relevant police interview materials remained available. It was equitable to disapply the statutory time limits.
5. The defendant also failed to show a reasonable prospect of disproving the assault. The claimant’s core account had remained consistent, the available investigation materials supported a fair assessment, and the defendant bore the burden of disproving the jury’s verdict. Changes in the defendant’s account further weakened the proposed defence.
6. The judgment of February 2019 was not set aside.

The judgment concerned an application to set aside the court’s earlier judgment following trial. The earlier judgment found liability and assessed damages at £53,152.

• High Court (Queen’s Bench Division): the earlier judgment was given in KD v Gaisford [2019] EWHC 339 (QB). The present application to set it aside was dismissed.