Yan Deng & Anor v Meng Zhang & Anor

The general case-management power under Civil Procedure Rules 1998, CPR 3.1(2)(m), may be used to set aside an appeal order made in a party’s absence. The court should draw assistance from the analogous rules governing absent parties, while applying the overriding objective.

Relevant considerations include promptness, whether the absence had a good reason, the merits of the underlying appeal, the seriousness of any procedural default, and the fair allocation of court resources. Genuine ignorance of a hearing is not, by itself, a good reason where the party knew of the proceedings and had no reliable system for monitoring court communications. The discretion is to be exercised sparingly.

The Claimant brought claims concerning alleged breaches of data protection rights, breach of confidence, misuse of private information and malicious falsehood. At a costs and case management conference, Master Yoxall permitted reliance on a late costs budget and dispensed with costs budgeting.

The Defendants appealed. Saini J allowed the appeal in the Claimant’s absence and ordered that the Claimant be treated as having filed a budget comprising only the applicable court fees. The Claimant applied to set aside that order, asserting that he had not known of the appeal hearing. The central issues were whether the evidence filed late should be admitted and whether the order should be set aside under the court’s general case-management power.

1. Late evidence. The Claimant was granted permission to rely on the late witness statement and relief from sanctions. The delay was serious and lacked a good reason, but the evidence was short, materially relevant, and caused no unfair prejudice. Its admission assisted the just determination of the application under the three-stage approach in Denton.
2. Applicable principles. CPR 3.1(2)(m) supplied the general power to set aside the order. CPR 23.11 and CPR 39.3 did not apply directly, but their principles provided useful assistance by analogy. The discretion should be exercised sparingly, having regard to the overriding objective, the merits, and the appropriate allocation of court resources.
3. Reason for non-attendance. The Claimant’s solicitor gave genuine and honest evidence that he had not read the email notifying him of the hearing. That did not amount to a good reason. He knew that the appeal had been issued and permission granted, the relevant email address had been supplied for court communications, and there was no robust system for ensuring that emails were read and acted upon. Overwork and failure to monitor communications did not justify the default.
4. Merits and overall justice. The evidence showed that the costs budget had not been properly filed or served. There was a strong argument that the Master had been materially misled when granting relief from sanctions and dispensing with costs budgeting. The weakness of the proposed appeal, the repeated procedural defaults, delay, and disproportionate use of court resources all weighed against setting aside Saini J’s order.
5. The application to set aside was dismissed. Saini J’s order remained in force: the Claimant was refused permission to rely on the 2 May 2023 Precedent H and was treated under CPR 3.14 as having filed a budget comprising only the applicable court fees. Costs submissions were directed to be filed within 14 days.

• High Court (King's Bench Division): Saini J allowed the Defendants’ appeal on 20 March 2024 and substituted an order restricting the Claimant’s costs budget.
• High Court (King's Bench Division): Mrs Justice Hill dismissed the Claimant’s application to set aside Saini J’s order. The order therefore stood.