Junior Sobowale v Lendinvest Capital SARL

An appeal against refusal to permit a party to attend or give evidence remotely must be assessed by asking whether the resulting hearing was fair, rather than merely whether the case-management decision fell within a broad range of reasonable decisions. The assessment is fact-sensitive and proceeds in two stages: the applicant must substantiate the factual basis for the request, and the court must then exercise its judgment fairly. Remote participation may materially reduce prejudice and inconvenience compared with an adjournment, but the applicant must provide adequate evidence and make practical arrangements for the hearing. Where a trial proceeds in a party’s absence, an appeal seeking in substance a retrial is ordinarily governed by the three requirements in CPR 39.3(5). All three requirements must be satisfied.

Mr Junior Sobowale appealed against orders made by Deputy Master Henderson on 17 October 2023 in a commercial claim by Lendinvest Capital S.A.R.L. concerning personal and costs overrun guarantees connected with a bridging loan. The Deputy Master refused an application to attend or give evidence remotely from Nigeria, refused relief from sanctions and permission to rely on a late witness statement, and proceeded to judgment for Lendinvest.

The appeal was permitted on all grounds. The issues were whether the refusal of remote participation produced an unfair trial or breached Article 6, whether the appeal should be treated by reference to CPR 39.3(5), and whether relief from sanctions had been wrongly refused.

1. Remote participation and fairness. Applying Bank of Scotland v Pereira and the principles in Bilta (UK) Ltd v Tradition Financial Services Ltd and Terluk v Berezovksy, the appeal against refusal of remote participation was treated as a free-standing challenge to a decision comparable to refusal of an adjournment. The question was whether the resulting hearing was fair, not simply whether the decision lay within the Deputy Master’s broad discretion. Article 6 was engaged.
2. The court should first assess whether the applicant has substantiated the factual basis for the request, and should then exercise its discretion on the facts. A request to attend or give evidence remotely may require a broader consideration of the court’s case-management powers under CPR 3.1(2)(b), particularly where refusal would exclude the party from the hearing altogether. The lower court had risked unfairness by treating the application restrictively as one only to give evidence.
3. Nevertheless, the application was unsupported beyond a solicitor’s assertion that Mr Sobowale’s mother was very ill. There was no adequate explanation of why he could not return for the trial, no explanation why his solicitors could not attend, no reliable means of contacting him, and no arrangements for the proposed video hearing. The failure to provide confirmation concerning Nigeria under CPR Practice Direction 32, Annex 3, paragraphs 4 and 8 was also material. The application’s factual basis was therefore not made out. In addition, the Defence had already been struck out and Mr Sobowale was debarred from defending, a conclusion not challenged on appeal. Refusal of remote participation was consequently fair and did not breach Article 6.
4. Absence at trial. Applying Pereira and Mabrouk v Murray, the court considered the appeal by reference to CPR 39.3(5). Promptness was satisfied because the appeal notice had been physically submitted within three weeks and an extension had been granted. The requirement of a good reason for non-attendance was not satisfied because the asserted family emergency was insufficiently evidenced and the necessary arrangements for remote participation had not been made. The reasonable-prospect requirement also failed because the Defence was struck out and, in any event, the proposed undervalue defence lacked valuation evidence. A retrial could not be obtained by the back door of an appeal.
5. Relief from sanctions and outcome. The refusal of relief from sanctions was a discretionary case-management decision based on Denton v TH White Limited. It fell well within the available discretion. The late witness statement was served only the day before trial, and its lateness had to be assessed separately from Lendinvest’s earlier and materially different delay. The appeal was dismissed on all grounds. Mr Sobowale was ordered to pay Lendinvest’s appeal costs of £9,000 including VAT by 1 August 2024.

• Chancery Appeals (ChD), High Court: Deputy Master Henderson dismissed the Remote Application and Sanctions Application on 17 October 2023, entered judgment for Lendinvest and ordered costs. The appeal against those decisions was dismissed on all grounds.
• Permission to appeal: Richards J extended time for the appeal notice on 28 November 2023. Zacaroli J granted permission to appeal on all grounds on 14 March 2024.