Trial in the absence of a party

A court may proceed with a trial in the absence of a party. The non-attending party may subsequently make an application to the court to set aside any judgment or order made against it (CPR 39.3(3)). The Court of Appeal recently considered the application of CPR 39.3(3) in Mabrouk v Murray [2022] EWCA Civ 960. 

Law, policy, and the appeal process

An application under CPR 39.3(3) must be supported by evidence. The court may grant the application only if it is satisfied that each of the three limbs of CPR 39.3(5) have been met: the applicant (a) must have acted promptly; (b) must have a good reason for not attending; and (c) he must have a reasonable prospect of success at trial. In Bank of Scotland v Pereira [2011] EWCA Civ 241 Lord Neuberger MR considered the interplay between the appeal process and CPR 39.3 and explained that:

• Where a defendant is seeking a new trial on the ground that it did not attend the trial, then it should proceed under CPR 39.3.
• If a defendant seeks to appeal without first making a CPR 39.3 application, the appellate court could still entertain the appeal, but it will normally require unusual facts before it should do so.
• If the defendant’s CPR 39.3 application has failed, then to allow the appeal would be letting the defendant ‘in through the back door’.
• The policy behind CPR 39.3 is to prevent a defendant from seeking a retrial if she did not attend the trial (see Regency Rolls Limited v Carnall [2000] EWCA Civ 379).

Mabrouk v Murray

The application under CPR 39.3 arose from the murder of WPC Yvonne Fletcher outside the Libyan Embassy on 17 April 1984. The respondent was a colleague of WPC Fletcher and witnessed her death, which had a profound impact on his mental health. The appellant was a very senior Libyan official and was present at the embassy at the time of the shooting. He was subject of a police investigation which was later discontinued. The respondent commenced civil proceedings against the appellant on the grounds of assault and/or battery. The appellant did not file a defence but did engage in email correspondence with the respondent’s solicitors on the procedural directions that had been given by the court. Although the trial was listed, the appellant failed to attend. The trial took place at which the judge found the appellant liable for the assault of the respondent. Following the trial, the time for any appeal against the order of the court had lapsed and no extension was sought or granted by the judge. The appellant did not make a formal application to the judge or the Court of Appeal. The Court of Appeal addressed, inter alia, the position under CPR 39.3 and treated the application for permission to appeal as an application under that rule.

(a) Prompt action

The need for the applicant to act promptly has been interpreted as meaning ‘acting with all reasonable celerity in the circumstances’ (Regency Rolls Limited). The Court of Appeal found that the appellant did not act ‘with all reasonable celerity’ because (i) he had been careful not to say precisely when he found out about the judgment against him; (ii) no proper chronology was provided and no attempt was made to explain how and why, on the evidence, the appellant acted with all reasonable celerity; (iii) there was no evidence to support the assertion that access to the internet and electricity supply was sporadic in Libya; (iv) he was aware from the outset of the proceedings that the respondent was pursuing a civil claim against him, and he engaged with the respondent’s solicitor by way of email; and (v) there were no grounds to suggest that the appellant was impecunious and nor was it a valid reason for the delays. 

(b) good reason for not attending the trial

The general rule is that the court must be satisfied that the inability of a litigant to be present is genuine, and the onus is on the party who did not attend to prove that (Teinaz v Wandsworth LBC [2002] ICR 1471). The Court of Appeal found that the appellant had failed to satisfy this requirement because: (i) he ignored the proceedings altogether and deliberately chose not to take any part in them; (ii) the appellant’s article 6 rights had not been infringed because there were other ways in which he could properly have participated in the civil trial. The court noted that even before the pandemic, the use of remote hearings was widespread and it was the law that parties to civil litigation could, if they so wished, attend by way of video link rather than in person. The court held that the appellant had the right and the ability to attend by way of video link. The court was also satisfied that the appellant received a fair trial; (iii) it was clear from the evidence (for example, the existence of a property and the appellant’s actions in transferring it to his wife) that the appellant had the financial means to participate in the proceeding.

(c) a reasonable prospect of success at any retrial

The general test for ‘reasonable prospect of success’ means ‘a defence which carries some degree of conviction’ (Tinkler v Elliott [2012] EWHC 600 (QB)). The appellant failed to meet this aspect of the test because: (i) there was no detailed defence in the litigation; (ii) the defence relied on bare denials and assertions which was nowhere near enough to meet the hurdle in CPR 39.3(5)(c).

The decision provides a helpful reminder of the law and policy that underpins CPR 39.3. It is, as the Court of Appeal noted in Mabrouk, ‘a complete code as to what a party should do when it seeks to set aside the judgment on the ground that it did not attend the original trial’. The decision also illustrates the approach the courts will take in scrutinising the facts and evidence when considering applications under CPR 39.3.

Masood Ahmed is an associate professor at the University of Leicester and research fellow on the Vici Affordable Access to Justice project, Erasmus University, Netherlands