Saleh Ibrahim Mabrouk v John Murray

A party seeking a retrial because judgment was entered following a civil trial which that party did not attend should normally apply under rule 39.3 of the Civil Procedure Rules 1998. The rule is a complete code for that situation. The applicant must establish prompt action after learning of the judgment, a good reason for non-attendance, and a reasonable prospect of success at a retrial.

Exclusion from the United Kingdom provides no good reason for failing to participate where attendance by video link was available. A civil litigant has no general right to be physically present. When a final judgment followed a trial, a reasonable prospect of success ordinarily requires a real argument, commonly supported by material unavailable at trial, that a key finding was erroneous.

The respondent brought a civil claim in assault and battery arising from the 1984 shooting outside the Libyan Embassy in which WPC Yvonne Fletcher was killed. The appellant acknowledged the proceedings and submitted a short denial, which was ordered to stand as his defence, but he later ceased participating. After a trial in his absence, Martin Spencer J held him jointly liable and awarded the nominal damages sought: [2021] EWHC 3461 (QB).

More than four months after judgment, the appellant sought permission to appeal out of time and a retrial. The Court of Appeal treated the application, so far as necessary, as an application under rule 39.3 of the Civil Procedure Rules 1998. The central questions were whether the appellant had acted promptly, had a good reason for not attending, and had a reasonable prospect of success at a retrial.

1. Permission to appeal and the application under rule 39.3 were refused. Rule 39.3 supplies the complete code where a party seeks to set aside a civil judgment because that party did not attend the trial. Each requirement in rule 39.3(5) must be satisfied. An appellate court should ordinarily apply the same criteria as the trial judge would have applied: Bank of Scotland v Pereira [2011] EWCA Civ 241.

2. The appellant had not acted promptly. Promptness required all reasonable celerity in the circumstances. He knew of the judgment at or shortly after its hand-down but waited more than four months to apply. He supplied no adequate chronology or evidence connecting internet difficulties, sanctions or impecuniosity to that delay. Inability to fund legal representation did not provide a good reason for delay.

3. The appellant had no good reason for failing to attend. His non-participation was deliberate. A litigant in a civil case has no general right to be physically present, and the appellant could have attended by video link despite his exclusion from the United Kingdom. The opportunity was expressly offered but ignored. The trial was nevertheless fair because the judge critically assessed the unchallenged and hearsay evidence and gave particular weight to contemporaneous material.

4. The appellant had no reasonable prospect of success at a retrial. Following a final judgment reached after trial, a general assertion of error is insufficient. The applicant must present a real argument, ordinarily by reference to material unavailable to the trial judge, showing that a key finding was erroneous. No detailed defence or answer to the judge’s findings was produced.

5. Relief from sanctions was also refused under Denton v TH White Ltd [2014] EWCA Civ 906. The failures to participate and to apply promptly were serious and significant, there was no good reason for them, and the circumstances did not justify relief.

6. The proposed grounds were unarguable. A civil trial in a party’s absence is lawful. Allegations involving complicity in criminal conduct remain subject to the balance of probabilities when determined in civil proceedings. Limitation was not before the trial judge because it had never been pleaded as a defence.

1. Court of Appeal (Civil Division): Permission to appeal out of time was refused. The application, treated so far as necessary as one under rule 39.3 of the Civil Procedure Rules 1998, was also refused: [2022] EWCA Civ 960.

2. High Court, Queen’s Bench Division: Martin Spencer J tried the civil claim in the appellant’s absence, held him liable in assault and battery through common-design liability and alternatively procurement liability, and allowed the claim: [2021] EWHC 3461 (QB).