Balengani v Sharifpoor

An application to set aside an order made in a party’s absence engages different rules according to the nature of the hearing. For an interlocutory hearing, the court has the broad discretion under CPR r 23.11, together with the relief-from-sanctions principles in CPR r 3.9. For a trial, CPR r 39.3(5) imposes three mandatory requirements: promptness, a good reason for non-attendance, and a reasonable prospect of success. Only after those requirements are met does the court consider the wider discretion under CPR r 3.9 and the Denton principles. A delay of almost six years, where the applicant knew or should have known of the continuing proceedings, justified refusal of both applications.

The claimant sought to set aside two orders made in proceedings concerning a property investment and a counterclaim. The first order, made by Master Cook on 7 April 2014, struck out the claimant’s claim and defence to counterclaim and entered judgment for the defendant as a sanction for non-compliance. The second hearing, before His Honour Judge Simpkiss QC on 30 June 2014, assessed damages, interest and costs on the counterclaim.

The claimant, who had been seriously injured in an accident shortly before the first hearing, said that he had not known about the hearings or orders until enforcement proceedings in 2020. The central issues were the applicable procedural tests, whether the claimant had acted promptly and had a good reason for non-attendance, and whether relief from sanctions should be granted.

1. The first hearing was interlocutory rather than a trial. The application to set aside the order therefore fell under CPR r 23.11, which gives the court a broad discretion to re-list an application where a party was absent. Because the order imposed sanctions for breach of court orders and abuse of process, CPR r 3.9 and the three-stage Denton process also applied.

2. The second hearing was a trial for the purposes of CPR r 39.3 because it determined damages on evidence which could be called and tested by cross-examination. The claimant therefore had to satisfy each of the three mandatory requirements in CPR r 39.3(5): promptness, a good reason for absence, and a reasonable prospect of success. CPR r 3.9 and Denton were relevant only after those requirements had been satisfied.

3. The court found that the claimant knew of the litigation, the fixed hearing dates and the continuing proceedings. His correspondence shortly before the first hearing demonstrated detailed knowledge of the case. The court rejected his account that he believed the proceedings had ended and concluded that the application, made almost six years later when enforcement was imminent, was not prompt.

4. For the first hearing, the breach was serious and significant, the accident was only a partial explanation for the default, and the claimant’s subsequent conduct weighed against relief. The application was refused under CPR r 23.11 and CPR r 3.9.

5. For the second hearing, failure to satisfy the promptness requirement in CPR r 39.3(5)(a) was fatal. The court therefore did not need to determine the other two mandatory requirements. In any event, relief would have been refused under CPR r 3.9 for the same reasons.

6. The applications to set aside both hearings were refused. The claimant’s remaining applications and the defendant’s cross-application consequently fell away. The parties were invited to agree costs and consequential orders within 14 days.