Blue Side Services SA & Ors v BMF Holdings Limited

An order finally disposing of a claim by strike-out or summary judgment may be varied or revoked only in exceptional or very rare circumstances. Although CPR 39.3(3) does not directly apply to an application concerning a final order made on an interlocutory application, the requirements in CPR 39.3(5) provide a relevant framework by analogy. The court should consider promptness, a good reason for non-attendance and a reasonable prospect of success, before addressing broader justice and relief-from-sanctions considerations. A party that deliberately chose not to attend a hearing, while understanding that the merits would then be decided, cannot obtain a second opportunity merely by advancing further arguments. Such conduct may constitute an abuse of process and justify an extended civil restraint order.

The claimants applied to set aside or vary an order dated 18 March 2022, by which their claims had been struck out and summarily dismissed after they failed to attend the defendant’s application. They relied principally on CPR 39.3(3), CPR 3.1(7) and other powers. They also sought an adjournment of the present hearing, signed by a person whose authority to act for the claimant companies was unsupported by evidence.

The court first determined the adjournment application. It then considered whether the earlier final order could be reopened, including the relevance by analogy of CPR 39.3(5), the finality of orders under CPR 3.1(7), and the overriding objective. The central issues were whether the claimants had a good reason for non-attendance and whether exceptional circumstances justified reopening the final order.

1. The application to adjourn was dismissed and certified as totally without merit. There was no proper evidential basis showing that the claimants or legal representatives could not attend, and no justification for awaiting an unrelated Court of Appeal decision. The allegations of apparent bias and prejudgment were also rejected.

2. CPR 39.3(3) is concerned with failure to attend a trial and did not directly apply to the hearing at which the claimants’ claims were struck out. Nevertheless, the requirements in CPR 39.3(5) were relevant by analogy as minimum jurisdictional requirements for reopening an application after a claim has been struck out. If those requirements are met, the court must then consider broader questions of justice, the overriding objective and the criteria in CPR 3.9.

3. Under CPR 3.1(7), a strike-out or summary judgment order is a final order. Finality is a critical consideration. A change of circumstances or a misstatement of facts at the original hearing is insufficient, and the circumstances justifying setting aside a final order will be very rare: Sangha v Amicus Finance Plc [2020] EWHC 1074 (Ch).

4. The claimants had applied promptly but had no good reason for failing to attend. They had deliberately elected not to attend, knowing that the court would proceed to determine the merits if their adjournment application failed. They also had no reasonable prospect of success, since their claims remained legally unintelligible and without a realistic prospect of success.

5. It was an abuse of process to seek a second opportunity by advancing further merits arguments after deliberately foregoing the original hearing. The application to set aside was therefore dismissed, certified as totally without merit and recorded as abusive.

6. An extended civil restraint order was made. The claimants had persistently issued claims or applications certified as totally without merit, their conduct was abusive, and a limited order would not be sufficient.

First-instance decision. The judgment refers to an earlier judgment in the same litigation, reported at [2022] EWHC 714 (Ch), but that decision is excluded from the cited-case analysis as part of the same dispute.