Vafa v Patel

An application to reopen an unappealed judgment after trial may constitute an abuse of process where it repeats an earlier unsuccessful application or relies on evidence and arguments which should have been advanced at trial. The court must adopt a broad, merits-based assessment of the whole litigation. A judgment following a trial is not a default judgment merely because one party was absent or failed to provide evidence. Under CPR 39.3, setting aside requires prompt action, a good reason for non-attendance and a reasonable prospect of success. A fair hearing does not invariably require an oral hearing where the written materials make the application’s failure clear.

The claimant brought proceedings concerning money said to be owed under an agreement for the transfer of a tenancy and retail business. The County Court gave judgment for the claimant at trial when the defendant was absent and had not served evidence. Her subsequent application under CPR 39.3 to set aside that judgment was dismissed.

She then made a further application relying on alleged defects in the judgment, new evidence, fraud, jurisdictional arguments and the asserted unfairness of proceeding in her absence. HHJ Simpkiss struck out that application as an abuse of process, on the papers. The central issues on appeal were whether the application was an abuse of process and whether it was procedurally unfair to determine it without an oral hearing.

1. Appeal dismissed. The order striking out the defendant’s further application as an abuse of process was upheld.
2. The trial judgment was a final judgment on the merits. It was not a default judgment under CPR 12.1, because the defendant had filed an amended defence and the claim had proceeded to trial. It was not summary judgment under Part 24, nor an interlocutory order made on the court’s own initiative for the purposes of CPR 3.3(5).
3. The proper route for an absent party seeking to set aside a judgment made after a trial in their absence was CPR 39.3. The applicant had to establish prompt action, a good reason for non-attendance and a reasonable prospect of success at a restored trial. The defendant had already pursued that route and had not directly challenged the dismissal of her application.
4. Applying a broad, merits-based approach, the further application was in substance an attempt to relitigate the earlier application. The asserted evidence either had been, or should have been, before the earlier judge or at trial. The different account of the underlying money dispute did not reframe the judgment or deprive it of a sustainable evidential basis. A bare allegation of fraud, without pleading or evidence, did not justify reopening the matter.
5. Determination on the papers was not inherently unfair. Under CPR 23.8, the judge had discretion to proceed without an oral hearing. The materials sufficiently demonstrated that the application could not succeed and that an oral hearing would merely prolong the abuse.

• High Court (Queen’s Bench Division): appeal against the order of HHJ Simpkiss dated 3 February 2020 dismissed.
• County Court at Dartford: the defendant’s further application to set aside the trial judgment was struck out as an abuse of process. An earlier application under CPR 39.3 had been dismissed by DDJ McCloskey.