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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Mohun -Smith v TBO Investments Ltd [2014] EWHC 3241 (QB) (31 July 2014) URL: http://www.bailii.org/ew/cases/EWHC/QB/2014/3241.html Cite as: [2014] EWHC 3241 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Court of Justice Strand London WC2A 2LL
		31st July 2014

HHJ SEYMOUR:

1. The application before the Court is an application on behalf of the defendant, TBO Investments Ltd, pursuant to Part 39.3(5) of the Civil Procedure Rules, seeking an order setting aside the judgment and order which I made on 30^th June of this year in this action.
2. The 30^th June was supposed to be the first day of the trial. On that occasion, the defendant did not appear and was not represented and I proceeded in accordance with the provisions of Part 39.3 of the Civil Procedure Rules. Specifically, I struck out the defence of the defendant and entered judgment for the claimant.
3. There was before me on 30^th June what I think is politely described as an informal application for an adjournment. The application, such as it was, was contained in a letter dated 30^th June 2014 written by a firm of solicitors called Shakespeares which had previously been acting on behalf of the defendants. The letter from Shakespeares was addressed to the listing office of the Queen's Bench Division of this Court and said this:

'We were on record at the Court as acting on behalf of the Defendant until notice of change was filed on 12 June 2014 confirming that the Defendant, acting through its representative, Scott Robinson, would now…' I think it should say, 'be...' '…representing itself in these proceedings.

We are informed that the trial in the above matter is commencing today (30 June 2014) at 2:00pm before His Honour Judge Seymour QC.

We have today received the attached letter from David McLaughlin of the Defendant and have been asked to provide a copy of the same to the Court for consideration.

In the light of the circumstances set out within that letter, the Defendant has asked that the Court consider an adjournment to the trial.

As the trial is listed to commence today, please could you ensure that the enclosed letter and statement of fitness to work is placed before His Honour Judge Seymour QC for consideration as soon as possible.'

There are then some contact details which I need not recite.

4. The letter of Mr McLaughlin which is referred to is also dated 30^th June 2014 and is addressed to Mr Mark Beesley at Shakespeares. What the letter says is this:

'The Trial Window is now into its second week and on Friday (27^th June), Mr Robinson was obliged to attend his GP practice for a Medical assessment, due to the arising stress and pressure of the pending proceedings.'

Words which perhaps are of significance:

'Following that appointment, Mr Robinson has been instructed to rest for at least a week and to report back to the Surgery on Friday of this week for a review of the condition. His GP issued a Statement for Fitness to Work certificate and this is enclosed.

For the avoidance of doubt, the company has no other representation. Mr Robinson is the only feasible witness able to stand on behalf of TBO Investments Ltd, therefore we respectfully seek an adjournment of the case, until he is able to deal with the proceedings.'

5. Now notwithstanding what he actually said, it was, and is, plain that it would have been open to Mr McLaughlin to represent TBO Investments Ltd, the defendant, at the trial if he so chose. The real significance of Mr Robinson is not that he was the only person who could have been presented on behalf of the defendant in order to represent it at trial; rather that Mr Robinson was the individual about whom the complaints giving rise to claims in this action were made, so he was obviously an important witness.
6. The statement of fitness for work document which is referred to in Mr McLaughlin's letter, and which is described at paragraph 16 of Mr Robinson's third witness statement of 18^th July of this year in support of this application as a sick note, said this. Having given the patient's name, it is recorded that:

'I assessed your case on 27/06/2014 and, because of the following condition: family stress, I advise you that: you are not fit for work.'

The indication on the document is that Mr Robinson would not be fit for work for the period from 27^th June 2014 to 4^th July 2014.

7. The material which was relied upon in support of the informal application for an adjournment seemed to me to be wholly inadequate. I reminded myself that Mr Justice Norris in the case of Levy v Ellis-Carr & Ors [2012] EWHC 63 (Ch) said at paragraph 36 of his judgment this:

'Can the Appellant demonstrate on this appeal that he had good reason not to attend the hearing (as he would have to do under CPR 39.5)? In my judgment he cannot. The Appellant was evidently able to think about the case on 24 May 2011 (because he went to a doctor and asked for a letter that he could use in the case, plainly to be deployed in the event that an adjournment was not granted)…'

A feature which is also a feature of the present case.

'If he could do that then he could come to Court, as his wife did. He has made no application to adduce in evidence that letter (and so has not placed before the court any of the factual material necessary to demonstrate that a medical report could not with reasonable diligence have been obtained before the hearing before the Registrar). But I will consider that additional evidence. In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case). The letter on which the Appellant relies is wholly inadequate.'

8. That passage was considered by the Court of Appeal in Ketley v Brent & Anor [2012] EWCA Civ 324. The leading judgment was that of Lewison LJ, who cited the greater part of the paragraph which I have just read at paragraph 26 of his judgment. He introduced that citation in this way, 'In Levy v Ellis-Carr Mr Justice Norris set out his approach to medical evidence in terms with which I agree.'

At paragraph 25 of his judgment Lewison LJ had said this:

'Judges are often faced with late applications for adjournment by litigants in person on medical grounds. An adjournment is not simply there for the asking. While the court must recognise that litigants in person are not as used to the stresses of appearing in court as professional advocates, nevertheless something more than stress occasioned by the litigation will be needed to support an application for an adjournment. In cases where the applicant complains of stress-related illness, an adjournment is unlikely to serve any useful purpose because the stress will simply recur on an adjourned hearing.'

9. The application before me, as I indicated, is an application pursuant to the provisions of Part 39.3(5) of the Civil Procedure Rules. It is an application technically under paragraph (2), and paragraph (5) provides that:

'Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant:

(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him,

(b) had a good reason for not attending the trial; and

(c) has a reasonable prospect of success at the trial.'

10. I have been reminded that guidance as to the application of that paragraph has been given by the Court of Appeal in Bank of Scotland plc v Pereira & Ors [2011] 1 WLR 2391. The leading judgment of the Court of Appeal was that of Lord Neuberger, the Master of the Rolls and he set out these principles starting at paragraph 24 of his judgment:

'24. First, the application to appeal Judge Ellis's refusal under CPR 39.3 to set aside the Order. An application to set aside judgment given in the applicant's absence is now subject to clear rules. As was made clear by Simon Brown LJ in Regency Rolls Ltd v Carnall [2000] EWCA Civ 379, the court no longer has a broad discretion whether to grant such an application: all three of the conditions listed in CPR 39.3(5) must be satisfied before it can be invoked to enable the court to set aside an order. So, if the application is not made promptly, or if the applicant had no good reason for being absent from the original hearing, or if the applicant would have no substantive case at a retrial, the application to set aside must be refused.

25. On the other hand, if each of those three hurdles is crossed, it seems to me that it would be a very exceptional case where the court did not set aside the order. It is a fundamental principle of any civilised legal system, enshrined in the common law and in article 6 of the Convention for the protection of human rights and fundamental freedoms that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representatives are present and are heard. If the case is disposed of in the absence of a party, and the party (i) has not attended for good reasons, (ii) has an arguable case on the merits, and (iii) has applied to set aside promptly, it would require very unusual circumstances indeed before the court would not set aside the order.

26. The strictness of this trio of hurdles is plain, but the rigour of the rule is modified by three factors. First, what constitutes promptness and what constitutes a good reason for not attending is, in each case, very fact-sensitive, and the court should, at least in many cases, not be very rigorous when considering the applicant's conduct; similarly, the court should not pre-judge the applicant's case, particularly where there is an issue of fact, when considering the third hurdle. Secondly, like all other rules, CPR 39.3 is subject to the overriding objective, and must be applied in that light. Thirdly, the fact that an application under CPR 39.3 to set aside an order fails does not prevent the applicant seeking permission to appeal the order. It is not very convenient, but an applicant may be well advised to issue both a CPR 39.3 application and an application for permission to appeal at the same time, or to get agreement from the other party for an extension of time for the application for permission to appeal.'

11. The application before me is supported by two witness statements from Mr Robinson. I have already mentioned the third which was made on 18^th July this year. The fourth was made, on the face of it, today. The purpose of the fourth is to exhibit two documents originating, on the face of it, from Mr Robinson's doctor, to which I shall come in a moment.
12. It is convenient first of all to consider the question whether the defendant acted promptly when it found out that the Court had exercised its power to strike out or enter judgment or make an order against it. It is accepted on behalf of the claimant that at least the third of the requirements in Part 39.3(5), that the defendant has a reasonable prospect of success at the trial, is satisfied but the position of the claimant is that the other two provisions are not satisfied. What, therefore, is the evidence as to the promptness with which the defendant acted when it found out that the Court had exercised its powers?
13. This is dealt with by Mr Robinson in his third witness statement at paragraph 17, and paragraph 17 appears to have been very carefully phrased. What Mr Robinson says is this:

'I heard nothing in relation to the matter from the Court or Pinsent Masons until a fax was sent by Pinsent Masons providing a 'draft order' which they had sent to the Court for approval was faxed on 3 July 2014. I did not see this fax until David', a reference to his co-director Mr McLaughlin, 'contacted me about it. The sealed judgment and order were presented to me today,' 18^th July, 'following my return to the office after 10 days on private client appointments throughout the UK.'

14. What Mr Robinson does not say is when he was told that the order which I made on 30^th June had actually been made. Indeed, it appears that in paragraph 17 of his witness statement he is very careful not to say that. Whilst creating the impression that he did not know about it until Mr McLaughlin contacted him about the fax of 3^rd July on a date which Mr Robinson does not identify, he goes on to say that he did not actually see the sealed judgment and order until 18^th July. However, Mr Robinson, in his witness statement, gives details which make it entirely clear that he has been able to function effectively by going on private client appointments since at least 8^th July.
15. The application before the Court, although dated 18^th July by those who have completed the form, is in fact sealed by this court on 23^rd July. Each case, has Lord Neuberger pointed out in Bank of Scotland plc v Pereira is very fact-sensitive. Mr Burgess, who appears on behalf of the defendant, has emphasised that the period between the hearing before me on 30^th June and the making of the application which is presently before the Court was not a long period. In one sense that is true, but the question which I have to consider is not whether the period was a long one or a short one. The question which I have to consider is whether the defendant acted promptly when it found out that the Court had exercised its power to strike out or to enter judgment or make an order against it. It is difficult to resist the conclusion that the defendant, a limited liability company with at least two directors, knew no later than 3^rd July of the outcome of the hearing on 30^th June. It is difficult to resist the conclusion that Mr Robinson himself knew that perfectly well at some date between 3^rd July and 8^th July, and that, with that knowledge, he thought that a more appropriate way of occupying his time was to go on a 10-day tour of the United Kingdom visiting private clients, rather than making an application to this Court pursuant to the provisions of Part 39.3(5).
16. In those circumstances and for that reason, in the particular circumstances of this case it is plain, in my judgment, that the defendant did not act promptly when it found out about my order of 30^th June.
17. I turn to the second requirement, whether there was a good reason for not attending the trial. For the reasons which I have explained, on 30^th June itself it seemed to me that the material which was relied upon in support of the informal application for an adjournment was wholly inadequate. There was no attempt to grapple with the requirements identified by Mr Justice Norris which had been approved by the Court of Appeal. What I was offered was simply what Mr Robinson himself describes as a 'sick note', accompanied not by a medical explanation but by an explanation from his co-director, Mr McLaughlin, that the condition of stress referred to in the sick note was '…the arising stress and pressure of the pending proceedings.' Put before me today is a limited amount of explanation from Mr Robinson and two more letters to which I shall come. The limited amount of explanation which is given by Mr Robinson is in his third witness statement at paragraph 12 where he says this:

'I spent the week waiting for the trial to take place and start and frankly the delay and the worry together with having to continue to deal with my day to day job created an unbearable situation which was having an effect on my business and personal life at home. The stress it was putting me under was unpalatable and at this point in time I had not heard anything from the Court regarding the trial starting on the final day in the floating 5 day window (27 June 2014).'

Then at paragraph 13:

'I spoke to Dr Adams at Stamford Bridge Surgery over the telephone first thing on the morning of 27 June 2014 and made an appointment to see my GP that same day at 5.10pm. The prognosis over the phone was that I should not be working for at last a week as my own personal wellbeing was beginning to suffer and it was confirmed in person at my appointment.'

18. The fact that, according to Mr Robinson, the diagnosis was made over the telephone and in advance of any physical inspection or examination of Mr Robinson does not encourage confidence in the accuracy of the diagnosis.
19. The documents which are relied upon in support of this application which were not before me on 30^th June are, first of all, a letter dated 25^th July 2014 signed, it appears, by Dr Adams, who is a lady, and in which she says this:

'I am writing this letter in my capacity as general practitioner at My Health where Mr Robinson is registered. I have his permission to write this letter. I can confirm that Mr Robinson was not fit to attend court w/c 30 June 2014.

I am unaware of any reason that would make him unfit to currently attend court.'

20. Dr Adams does not there elaborate to any significant extent upon her expressed view that Mr Robinson was not fit to attend court in the week commencing 30^th June. It might have been helpful to have been told why Mr Robinson, who was apparently physically able to attend upon the doctor at 5.10pm in the afternoon of 27^th June, was nonetheless not fit to attend court in the week commencing 30^th June, but no such explanation has been offered. It might also have been helpful to have been told whether, as anticipated by Mr McLaughlin in his letter of 30^th June, Mr Robinson did attend Dr Adams again on the Friday of that week, which was 4^th July, for a review of his condition. Although that is what Mr McLaughlin says he anticipated as at 30^th June, there is no indication in either the letter of 25^th July, to which I have referred, or in a later letter of 30^th July from Dr Adams, that actually there was a further attendance on 4^th July. What Dr Adams says in the letter of 30^th July is this:

'I am writing this letter in my capacity of general practitioner at My Health where Mr Robinson is registered. I have his consent to write this letter.

I can confirm that Mr Robinson was not fit to attend court w/c 30 June 2014.

I saw Mr Robinson in surgery on 27 June when he was under a great deal of stress due to a combination of business and family affairs. This stress resulted in an inability for Mr Robinson to attend any formal meetings, and obviously attending a court hearing as a key witness would be included in this.

I advised Mr Robinson to rest for a week and gave him a MED3', which I think is what Mr Robinson describes as a sick-note, 'to that effect, telling him not to work.

I am unaware of any reasons why Mr Robinson is not fit to attend court as a key witness at the present time. This is my independent view.'

21. It would have been helpful to have been told whether Mr Robinson had a history of suffering from stress. It would have been helpful to have been told whether Mr Robinson returned to see Dr Adams or one of her colleagues at the end of the week commencing 30^th June and, if so, what was then found. In the absence of any of this material, I have to say that I am no more persuaded now than I was persuaded on 30^th June that there was a good reason for the defendant not attending the trial on 30^th June. As I emphasise, the defendant is a limited liability company with at least two directors and therefore did not have to attend by Mr Robinson, it could have attended by Mr McLaughlin. It did not. The quality of the material relied upon as justifying the absence of Mr Robinson for the reasons which I have given is wholly insufficient and so in those circumstances the defendant has failed to demonstrate the first two of the three conditions which it needs to overcome in order to persuade the Court to exercise its discretion under Part 39.3(5) of the Civil Procedure Rules. This application fails and is dismissed.

End of judgment.

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