District Judge Stephen Gerlis looks at the options open to the court when a party fails to attend trial

It is practically an everyday occurrence in the county court. The district judge has a busy list and in the middle of it, a case is called on and only one side turns up. Sometimes there is an explanation why one party is missing, sometimes there is not. Sometimes there is a reasonable excuse, often there is not.


The district judge at Oxford County Court sent a Mr Barberet a note, drawing his attention to the requirement (in rule 16.2(1)(a) of the Civil Procedure Rules 1998 (CPR)) that a statement of case be concise. Mr Barberet decided to protest this criticism of the 522-page tome, which was his statement of claim, by failing to turn up to a strike-out hearing 'because he did not wish to recognise the legitimacy of the hearing' (Barberet v Oxford University [2004] EWCA Civ 1822). The intransigent mother in Re S [2004] EWCA Civ 1790; [2004] All ER (D) 09 (Dec); [2005] 1 FLR 812, expressed her views of the judge and the court's order for contact in four-letter words too indelicate for publication here, as her excuse for refusing to attend court. Neither litigant got satisfaction from the court.


Being disrespectful to the court does not have to be directly obvious, as some recent cases demonstrate.


In Cook v Bates & anor [2005] EWCA Civ 205, the Court of Appeal expressed its displeasure at the behaviour of Mr Cook. The court had gone out of its way to accommodate him by arranging for a video conference to be provided where he could not attend court in London.


The proceedings had a history of delays caused by Mr Cook. On the day of the listed hearing of his appeal, he informed the court that he would not be attending on the grounds that he required legal representation and had wished to file further material in support of his appeal. Mr Cook accordingly sought an adjournment of the appeal, which was refused. The court said that 'enough was enough' and further delay would undoubtedly cause prejudice to the other party.


Similarly, in Pritchard Englefield (a firm) & anor v Steinberg [2005] All ER (D) 55 (Mar), when a libel case came up for trial, the defendant did not attend on the grounds that he thought that he was to be represented pro bono by the Citizens Advice Bureau and that he was too unwell to attend and represent himself. The fact that he was a New York lawyer did nothing to impress the court, which upheld the summary judgment awarded against him in his absence.


In Demiray v The Government Of Turkey [2005] EWHC 109 (Admin), Mr Demiray had applied for a writ of habeas corpus following his apparent committal to await a decision of the secretary of state as to his extradition to Turkey. Mr Demiray applied for an adjournment of his application. The claim form stated that he would make a witness statement supporting his claim. He did not.


All that had happened was that two medical reports were sent to the court. The medical reports appeared to state that Mr Demiray should refrain from attending work (but not court) because of illness and had apparently been sent from a firm of accountants. When the listed hearing of the applications was called on, Demiray was not represented at court. Enquiries by the court to the firm of accountants elicited no response. His application and writ were refused.


If a party's failure is as a result of matters outside that party's control, then balancing the prejudice caused to each side is a matter for the court. In Primus Telecommunications v Pan European & Ors [2005] EWCA Civ 273; [2005] All ER(D) 359 (Feb), the defendants' failure to be prepared in any meaningful way for trial was caused by a complete communication breakdown between client and solicitor, the latter having failed to take himself off the record despite being without instructions.


The appellate court was kinder to the defendants than the judge at first instance, who had pressed ahead with the trial and refused the defendants permission to adduce evidence. The Court of Appeal said the prejudice to the defendants far outweighed the prejudice that would be caused to the claimant by an adjournment of the trial with costs.


There are several options open to the court when a party deliberately fails to attend a trial or application. The strongest option is to strike out the claim altogether (CPR rule 39.3(1)). If it is the absentee's application, the court may, instead, merely strike out the application with costs. A more benevolent court, faced possibly with a good excuse for non-attendance, may merely adjourn the application to another date. If neither side turns up with no excuse, they may just adjourn the application generally although there is still the temptation to strike it out.


What is the effect on the applicant who deliberately absents herself from a hearing? In Shocked & anor v Goldschmidt & anor [1998] 1 All ER 372, the claimant was a popular musician who was in dispute with her agent, the defendant. The trial was fixed to take place on a date when the claimant was on tour. At a very late stage, she tried to instruct solicitors to represent her but they were unable to do so given the shortness of time.


She did not request an adjournment and the trial went on without her.


Not surprisingly, judgment was entered against her and she appealed. The Court of Appeal held that, as she had deliberately absented herself from the trial, she was subject to the judgment and that, in any event, she had no reasonable prospects of success in a retrial.


Therefore, one may conclude:


  • Where parties deliberately absent themselves from a hearing, they are bound by the decision. Therefore, the only recourse is to appeal the decision;


  • An application under CPR rule 39.3(3) to set aside the judgment is not appropriate in the case of deliberate failure to attend;


  • On either an appeal or an application to set aside, it is open to the court to consider whether the applicant has a reasonable prospect of success at trial.



    • District Judge Gerlis sits at Barnet County Court