Fatima v Family Channel Ltd & Anor [2020] EWCA Civ 824

“The Defendant is suffering from severe anxiety and low mood and is really struggling. A large part of it is caused by her upcoming court appearance. She is terrified of facing the person that has accused her. On review of her today she is highly distressed by this process. She does not have any family or friends supporting her through this. I would advise her not to appear in court tomorrow due to her mental health and lack of support and would appreciate if you would make other arrangements for whatever part of the legal process she is required to take part in.”

“In my judgment [the additional evidence] 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 Defendant has not attended today. Counsel is instructed to apply for an adjournment. He is instructed to apply to strike out the case but without being provided with any bundles of the evidence. He is not instructed in the trial. That is the Defendant’s choice. She has had plenty of time to instruct solicitors and counsel to attend trial. I am bound to say that this conduct seems to me to be an attempt by the Defendant to force the Court’s hand. At the moment I keep an open mind on this, but if it is, she would be mistaken if she thinks she can achieve that.”

“In my view, the Defendant, by her conduct of the case, has disclosed that she has no real intention of attending trial. I rehearsed yesterday the history of the conduct of this case. She has instructed solicitors to act on her behalf to strike out the claim and, failing that, to seek an adjournment on ill health grounds. Given the issues in this case, failure to provide the solicitors with instructions and funds to represent her at the trial must have been ongoing for some time. This is no last minute unforeseen event…..Even today I have had no information that the Defendant wishes to act in person. All I have had is information seeking to explain why she is not at court.”

“3…a. The reason for my non-attendance at the Trial. I have recently not been well. My GP has diagnosed me as suffering from severe anxiety. He issued a sick note on 15 January 2019 with that diagnosis [exhibited]. In consultation with me, he expressed the view that he did not feel that I was well enough to attend Court [letter of 15 January 2019 exhibited]. As a result of the 2nd Part 20 Defendant’s rape of me I have had to have counselling and therapy [letter of 16 January 2019 from Bradford Rape Crisis & Sexual Abuse Survivors Service exhibited]. In view of my physical and mental health I was advised by my former Solicitors to apply to adjourn the Trial. I understand, having been contacted by my solicitors, by telephone, at about 5pm on 16 January 2019, that my application was refused…as was a separate application…to strike out the Claimant’s claim. I was told by my former Solicitors that the Judge had said that I would have to come to court for the remaining 2 days of the Trial. My former Solicitors also said that they would be coming off the Court record …..and would not be representing me. At about 3am on 17 January 2019 I started to suffer chest pains and I was admitted to the Bradford Royal Infirmary…by Ambulance at approximately 6am. My husband texted my former Solicitor.. at 6.21am [text exhibited]. I was not discharged from hospital until approximately 3pm the same day after being seen by a Consultant [discharge summary exhibited]. I, therefore, suggest that I had a good reason for not attending Court on 17 January, namely, I was in hospital at the time having been admitted by Ambulance in the early hours of that day. I was not discharged until 3pm. I did not attend Court the following day because I was not well enough to do so after being hospitalised the previous day. I was concerned that if I attended Court I would end up back in hospital or worse. As directed by the hospital, I saw my GP that day. He prescribed me with a cocktail of medication namely, lansoprazole, sertraline, naproxen, propranolol and zopicione [GP appointment confirmation and prescriptions exhibited]. After taking that medication, which affects my memory and makes me feel drowsy, I was in no fit state to do anything other than to go to bed, which I did….”

“12. It is not appropriate to look at what occurred on 16 January to conclude that the Defendant would not attend on the second or third day of trial. The Recorder appropriately indicated that the Defendant should be given the assurance that every step will be taken to protect her mental health in the event that she attended the hearing.”

“13. The fact of the matter is that at the time that this hearing was taking place the Defendant was in hospital. She complained of chest pains early in the morning of the 17th and was effectively detained for a period that would have covered the time when the trial occurred. She patently could not attend the hearing other than after having absented herself from hospital which she had visited. 14. Counsel for the Claimant may well be frustrated as to the way in which this case has gone. However, he is no more doctor than I am and I think we must approach this application on the basis that the Defendant was genuinely affected and that she attended hospital for no malicious or malign reason and that she believed that she had something wrong with her in good faith, attending hospital for treatment. Her situation was such that one could well understand if she was upset, concerned, anxious and of low mood.”

“15…..I am driven to the conclusion that there was a good enough reason for not attending trial. She was at hospital at the material time and that in my book is a good reason for not attending. I do not think that the Recorder can have made a finding of fact properly so called because on the day he threw out the case he did not hear any evidence.”

“…It seems to me that, if the court reaches the conclusion that the facts available to the first judge were available to the second, notwithstanding that the test may be slightly different, the overall test is still fairness and the overriding objective, and if the facts are identical, the second judge, for reasons of judicial comity more than anything else and for consistency, should follow the decision of the first judge, even perhaps in his heart of hearts if he thinks he might have reached a different conclusion.”

“It strikes me that, in order for the application before [the District Judge] to succeed, there had to be a change in circumstances in that something had to be put before [the District Judge] which had not been before [the Recorder] which would have or might have caused him to reach a different conclusion. Obviously, if the application had been made to [the Recorder] he could have said for himself whether it would have made a difference.”

“For the reasons I have indicated, my view is that a judge on a 39.3 application should not overturn the decision of a trial judge in circumstances where the evidence before the second judge carrying out the 39.3 exercise is identical to that of the trial judge and, whilst the test may well be different, the overriding test is fairness and the overriding objective and, in my view, it was not open to [the District Judge] to set aside the decision of [the Recorder] in the circumstances he found himself on 13 March.”

“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 factsensitive, 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. 27. An appeal against a judge’s decision under CPR 39.3 to refuse (or indeed to allow) an application to set aside a judgment does not, at least normally, involve challenging a discretion. However, an appellate court should be slow to overturn a decision of this nature, unless satisfied that the judge went wrong in principle. The decision will often involve making findings of fact, and while the findings will normally be based on written evidence only, an appellate court should never lose sight of the principle that the first instance tribunal is the primary finder of fact. In so far as the decision involves a balancing exercise, an appellate court should pay proper respect to the judge’s views. Another way of making essentially the same point is that the appellate court normally has a reviewing, as opposed to a rehearing function in such a case, and can therefore only interfere if satisfied that the judge was wrong.”

“….where the defendant is seeking a new trial on the ground that she did not attend the trial, then even though she may have other possible grounds of appeal, she should normally proceed under CPR 39.3, provided she reasonably believes that she can satisfy the three requirement of CPR 39.3. the fact that she wishes to raise other arguments for attacking the trial judge’s decision should not preclude her proceeding under CPR 39.3, because that is the specific provision which applies if she did not appear at the trial (and gives her a potential right to a new trial)…. Further, if she has a retrial, the other arguments which she wishes to raise could be raised at the retrial (and they may be considered by the judge who hears her CPR 39.3 application).”

“I recognise that it is undesirable to seek to define a “good reason” within the meaning of CPR39.3(5)(b). But as Mummery LJ pointed out at para 12 of Brazil’s case, it is necessary to interpret CPR 39.3(5)(b) (as all other rules) so as to give effect to the overriding objective of deciding cases justly (see CPR Part 1.2(b)). Moreover, it must be interpreted so as to comply with article 6 of the European Convention on Human Rights (right to a fair hearing). I refer to the judgment of Brooke LJ in Goode v Martin [2001] EWCA Civ 1899, [2002] 1 WLR 1828 para 35. In my view, it is necessary to have both article 6 and the overriding objective in mind when interpreting and applying the phrase “good reason”

“26. But I accept the submission...that there is a material distinction between an application under rule 39.3(3) and an application for an adjournment of a trial. If the court refuses an adjournment, there will usually be a trial and a decision on the merits, although the unsuccessful applicant will be at a disadvantage, possibly a huge disadvantage, by reason of the absence of the witness or the party himself. Despite their absence and depending on the circumstances, it may still be possible for the disadvantaged claimant to prove the claim or the disadvantaged defendant to resist it. I accept that, in some cases, the refusal of an adjournment will almost inevitably lead to the unsuccessful applicant losing at trial. That is a factor that must be borne in mind when the court exercises its discretion in deciding whether or not to grant an adjournment. But if the application to set aside a judgment under rule 39.3(3) fails, the applicant will have had no opportunity whatsoever to have an adjudication by the court on the merits. This difference between an application under rule 39.3(3) and an application for an adjournment of the trial is important. Although it has not been articulated as the justification for generally adopting a more draconian approach to an application for an adjournment than to an application under rule 39.3(5), in my view it does justify such a distinction. It follows that the judge should have applied the Pereira guidance rather than the guidance in so far as there is a difference between the two……. 29…for the reasons given in Pereira and Estate Acquisition and which I have elaborated above, the court should not generally adopt too rigorous an approach in its assessment of the evidence adduced in support of an application under rule 39.3(3).” 29…for the reasons given in Pereira and Estate Acquisition and which I have elaborated above, the court should not generally adopt too rigorous an approach in its assessment of the evidence adduced in support of an application under rule 39.3(3).”

“….Specifically on the issue of “good reason” for nonattendance at trial, it is apparent that the judge was wrong in that he did not adopt a “less rigorous” approach when evaluating the sufficiency of the reason given for Mr Robinson’s non-attendance in the context of the application to set aside as per Pereira and Estate Acquisition.”

“28…..The court must first consider the three mandatory requirements of CPR Part 39.3(5), before considering the question of whether relief from sanctions is appropriate applying the Denton tests. Again, the sanction from which relief is sought is the order granted when the applicant failed to attend the trial, not the delay in applying to set aside the resulting judgment. The promptness of the application is a pre-condition under CPR Part 39.3(5)(a) and is considered as part of all the circumstances under the third Denton test.”