Ben Leeson & Anor v Donald McPherson

Under Civil Procedure Rules 1998, Part 39.3, a court may proceed with a trial in a party’s absence where the circumstances justify doing so. The court must balance the absent party’s fair opportunity to present its case against the need for robust case management and finality. Relevant considerations include whether the party knew of the hearing, whether attendance was realistically possible, whether an adjournment was sought, whether the absence was deliberate, whether the party could participate without representation, and the importance and age of the proceedings. A trial may proceed where the absent defendant has made a deliberate choice not to attend and there is little prospect of attendance later.

The claimants, Ben Leeson and William Leeson, brought proceedings against Donald McPherson concerning the death of Paula Leeson and associated estate and trust issues. The trial was listed as an attended hearing. The defendant, who was outside the jurisdiction, informed the court shortly before trial that he would not attend and had been unable to secure legal representation. He did not apply for an adjournment. The claimants sought determination on the merits rather than strike-out or summary disposal. The court therefore had to decide whether the trial should proceed in the defendant’s absence.

1. The court determined that the trial should proceed in the defendant’s absence under Civil Procedure Rules 1998, Part 39.3. The rule permits the court to proceed where a party does not attend and also permits sanctions including striking out a defence, although the claimants did not seek strike-out or summary disposal.
2. The court applied the overriding objective and the guidance in Williams and Another v Hinton and Another [2011] EWCA Civil 1123. A party must have a fair opportunity to present its case, but judges must also act robustly in case management so that proceedings reach a conclusion.
3. The defendant had known of the trial date and the requirement for an attended hearing since at least October 2023. He had previously indicated an intention to attend, possessed a passport, and had not suggested any impediment to attendance or sought an adjournment. The court was satisfied that attendance was possible.
4. The difficulties in obtaining representation did not justify postponement. The defendant had had ample time to arrange representation, his explanation was vague, and the asset-freezing injunction permitted expenditure on legal representation. In any event, he could act in person and had demonstrated an ability to engage with the proceedings and understand the issues.
5. The court concluded that the defendant had made a deliberate choice not to attend. The proceedings had continued for about three years, concerned matters requiring determination, and offered little prospect of the defendant attending at a later date. The trial was therefore ordered to proceed.