Luke Price & Anor v Julian Lewis Price

An application under Civil Procedure Rules 1998, CPR 39.3(5), requires satisfaction of all three conditions: promptness, a good reason for non-attendance, and a reasonable prospect of success at trial. The court should assess promptness and good reason in a fact-sensitive and generally non-rigorous manner, while applying the rule consistently with the overriding objective. The merits question concerns the real substance of the dispute, rather than the procedural sequence of setting aside earlier orders. A party cannot ordinarily rely on evidence withheld or served in breach of directions to establish a reasonable prospect of success. Relief from sanctions under CPR 3.9 remains separately relevant, although it may add little where the merits are hopeless.

The claimants, executors of Pamela Mary James’s estate, obtained judgment pronouncing for her 2019 will after the defendant, her son, failed to attend the trial. The defendant alleged that the deceased lacked testamentary capacity and had been subjected to undue influence. The trial judge dismissed the adjournment application, heard the claimants’ evidence, and granted probate. The defendant later applied unsuccessfully to set aside that order. He then applied to set aside the order striking out that application, relying on his medical condition, alleged lack of notice, and further evidence. The issue before HHJ Worster was whether the requirements of CPR 39.3(5), together with relief from sanctions under CPR 3.9, were satisfied.

1. Application dismissed. The defendant established promptness and, adopting the fact-sensitive and less rigorous approach required by Bank of Scotland Plc v Pereira [2011] EWCA Civ 241, had a good reason for not attending the 14 November 2022 hearing. The evidence nevertheless showed that notice had been sent to his postal address and relevant email addresses, and the court rejected his case that he was unaware of the hearing.
2. All three conditions in CPR 39.3(5) had to be satisfied. The decisive condition was reasonable prospects of success at trial. That meant a real, rather than fanciful, prospect, akin to the summary-judgment standard. The court considered the merits directly because the procedural route of setting aside the strike-out order and then reopening the trial was unreal and the parties had addressed the substantive claim.
3. The defendant’s proposed case on testamentary capacity and undue influence had no real or reasonable prospect of success. The evidence supporting capacity and the validity of the will was compelling. The defendant had also failed to comply with directions concerning disclosure, witness statements and expert evidence. He could not rely on further evidence which he had failed to serve in accordance with those directions.
4. The defendant would also have needed relief from sanction under CPR 3.9. Following Denton v White [2014] EWCA Civ 906, that was a separate requirement, although it added little in the circumstances. Had the merits been reasonably arguable, relief would have been granted.