The Dekagram: 1st July 2024

This week’s Dekagram features two warnings: the first relates to the wisdom or otherwise of relying on dishonest witnesses, never a good idea, whilst the second warns us of the consequences of failure to attend hearings, a more complex procedural area than you might at first think. Another complex area is the operation of the Montreal Convention – you still have time to sign up for our dekinar on 11^th July here:  Webinar Registration – Zoom

Dishonest Witnesses: a Warning

There have been a number of decisions handed down as of late in respect of dishonest witnesses. This week, we have another from Canterbury County Court. The case of Butt v Gargula (unreported, 2024) concerned the interlocutory strike out of a claim, in which the Claimant had served a witness statement from a witness who they alleged was independent. It may not surprise readers given the topic of this article, that it transpired that the independent witness was not, in fact, independent.

Factual background

The Claimant brought proceedings against the Defendant following a road traffic accident in January 2019. Whilst the Defence admitted the accident, it was denied that the accident occurred as a result of the negligence of the Defendant and further denied that the impact was sufficient to cause any injury or damage beyond “minor scraping damage”. Attached to the Defence was an undated witness statement from the Defendant. In that statement, the Defendant described a woman arriving at the scene of the accident approximately 45-50 minutes after the collision occurred. The woman had pulled over and spoken to the Claimant (it was asserted that she did not speak to the Defendant). The Defendant gained the impression that the Claimant and the woman seemed to know each other, however she maintained that the woman was not at the scene when the accident occurred. This was contrary to what the Claimant’s solicitors had advised the Defendant, namely that the woman (Ms Begum) was an independent witness who was behind both vehicles at the time of the accident.

In the course of the litigation, the Claimant proceeded to answer Part 18 requests by the Defendant. In his answers to those questions, the Claimant confirmed that Ms Begum was in a car behind him at the time of the accident and that she came out of her car after the accident and checked on the parties. He maintained that he did not know Ms Begum prior to the accident. A witness statement of Ms Begum was later served upon the Defendant, in which Ms Begum described what happened in the accident and conversations she allegedly had with the Claimant and the Defendant at the scene.

The Defendant proceeded to apply for the matter to be struck out prior to trial pursuant to CPR 44.15(c), on the grounds that the conduct of the Claimant was likely to obstruct the just disposal of the proceedings. The application was later amended to make it in the alternative pursuant to CPR 3.4(2)(b).

In support of their application, the Defendant exhibited a number of documents, including a statement from an intelligence analyst at their firm. In that statement, it was noted that the Claimant and Ms Begum both had links to five different addresses, including the Claimant’s address at the time of the accident. Their occupancy at two of the addresses overlapped and pre-dated the accident. Both the Claimant and Ms Begum had also been claimants in relation to an accident in June 2019 (where both gave the same address), and both were listed as the only two directors of the same company. It is notable that no evidence was submitted on behalf of the Claimant or Ms Begum to challenge the material relied upon by the Defendant in the application.

Judgment

The matter came before HHJ Brown. She found that the evidence produced by the Defendant was cogent evidence that the Claimant and Ms Begum were closely connected prior to the material accident. In addition, she drew an adverse inference against the Claimant in respect of his failure to adduce any evidence to challenge or explain the evidence obtained by the Defendant, and noted nothing had been advanced on his behalf to suggest there was any good reason why there was no positive challenge to the Defendant’s evidence and case. As such, her adverse inference was that no evidence had been adduced because the Claimant knew that what the Defendant asserted was true. HHJ Brown subsequently made findings that the Claimant had acted dishonestly in putting Ms Begum forward as an independent witness and his motive for so doing was to improve the prospects that he would recover damages from the Claimant. The dishonest conduct of the Claimant was deemed to be of such a nature and degree as to corrupt the trial process so as to put the fairness of the trial in jeopardy. The claim was subsequently struck out pursuant to CPR 3.4(2)(b).

Analysis

Although the Defendant fell into some error initially applying for a strike out under CPR 44.15 (which creates no power to strike out a claim), this judgment provides an interesting insight as to what the courts will be looking for if an application for a strike out in a claim tainted by dishonesty is made pursuant to CPR 3.4 prior to trial. This claim, however, had an unusual set of circumstances, in that no evidential rebuttal was effectively made by the Claimant in response to the allegations, despite it being made plain that the Claimant had given instructions to resist the application. The evidence required to succeed in an application of this sort prior to trial will likely need to be strong, particularly in relation to allegations of false evidence being adduced.

About the author

Ranked by the Legal 500 2021, 2022 and 2023 and by Chambers and Partners 2023 as a Rising Star, Dominique Smith was called in 2016 and has a busy practice in travel law. She undertakes work for both Claimants and Defendants in package travel claims, contractual disputes, and other related claims. Dominique has a particular interest in cross-border clinical negligence claims and regularly appears in the Coroners’ Courts.

Failure to Attend Hearings: another Warning

A party, generally speaking, fails to attend a hearing where they are neither personally present, nor legally represented- the latter being tested in Falmouth House Ltd v Abou-Hamdan [2017] EWHC 779 (Ch)[1].

What happens if a party fails- perhaps for good reason- to attend a court hearing? What are the likely consequences? What recourse do they have, and what are the requirements? What, if anything, can the attending party do about it?

The answer to these questions depends on the kind of hearing in consideration. There are two strikingly different sets of rules governing non-attendance at hearings of applications and non-attendance at trial, with the latter, understandably, being the bigger issue. Exactly what type of hearing falls into each category has been a matter of significant controversy and is discussed below.

An Application Hearing

CPR 23.11 provides that:

23.11

(1) Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in their absence.

(2) Where –

(a) the applicant or any respondent fails to attend the hearing of an application; and

(b) the court makes an order at the hearing,

the court may, on application or of its own initiative, re-list the application.

So- the short answer is that where the hearing in question is an application, the court may proceed with the hearing in the absence of either party, but may relist the hearing on the application of a party or of its own initiative.

Proceeding in the Absence of a Party

A court may do so, rather than must, and should be cautious about proceeding in the absence of, say, a litigant in person who has sought an adjournment for the first time- Graham Group Ltd v Fox [2002] EWCA Civ 1124[2]. But absent that situation, Sloutsker v Romanova [2015] EWHC 545 (QB)[3]:

Where a litigant fails to appear without giving a reason it is necessary to consider first whether they have had proper notice of the hearing date and the matters, including the evidence, to be considered at the hearing. If satisfied that such notice has been given, the court must examine the available evidence as to the reasons why the litigant has not appeared, to see if this provides a ground for adjourning the hearing.

So the court has a very wide discretion, but might be expected to consider if an adjournment been sought for proper reasons, in which case, it would often not be appropriate to proceed. Or, if not, has proper notice been given? And, if so, are there any proper reasons why the party has not attended? If not, at that point, a court is likely to proceed in the absence of a party.

To proceed in the absence of a party means precisely that, it does not grant a walkover to the attending party. So, for example, in Sloutsker v Romanova above, the court proceeded to consider the attending party’s application for relief arising from late service of witness statements on the merits. The only meaningful difference was that the other party was not there to make submissions in opposition.

Relisting a Hearing

Unsurprisingly, a party who misses a hearing for good reasons that may not, at the time, be appreciated, is likely to want a second bite at the cherry. The rules recognise this, and so the court has the power under CPR 23.11(2) to relist the hearing with a view to remaking the order.

The black letter rules grant the court an almost unfettered discretion to relist a hearing carried out in the absence of a party above. In principle, the court need not even have a paid application to consider such an order, it may do so of its own initiative.

In practice, it will be of no surprise that this power is exercised “sparingly” Balengani v Sharifpoor [2020] EWHC 1571 (QB)[4] or “exceedingly sparingly” Pickard & Anor v Roberts & Anor [2016] EWHC 187 (Ch)[5].

A number of considerations are implied by caselaw. First, and most importantly, the courts have repeatedly confirmed that an application under these provisions is analogous to the test for relief from sanctions in Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906[6] (see e.g. Balengani v Sharifpoor), so:

1. Was the non-attendance serious or significant? (It is hard to imagine non-attendance which was not).
2. Was there a good reason for the non-attendance?
3. What order should be made, in all the circumstances, to enable the court to deal with the case justly? The latter will, of course, involve considerations of proportionality of court time to the case at hand.

Additionally, and perhaps obviously, it will be “very rare” for a court to relist a hearing “where it was satisfied that there was no real prospect of any new order being different from that which it originally made” Copeland v Bank of Scotland Plc [2020] EWHC 1441 (QB)[7].

Similarly, in Balengani v Sharifpoor above, the application was defeated on grounds of lack of promptness alone, though the circumstances in that case were extreme (the application was made some six years late) and this principle is otherwise not especially well attested.

Non-Attendance at Trial

CPR 39.3 provides that:

39.3

(1) The court may proceed with a trial in the absence of a party but –

(a) if no party attends the trial, it may strike out the whole of the proceedings;

(b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and

(c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).

(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.

(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.

(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.

(5) 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.

There are different (but extremely similar) provisions relating to Small Claims at CPR 27.9 and 27.11. This is somewhat beyond the scope of this article but is worth being aware of. In practice, it can reasonably be assumed that most of the principles relating to CPR 39.3 will also apply to CPR 27.9-11.

Either way, the material differences where one is dealing with a trial are that:

1. The Court may strike out the absent party’s case for that reason alone. This is in contrast to the position in CPR 23.11 where the present party still has to make out their application on the merits, and gains no advantage other than that implied by the absence of the other party.
2. There is no express indication that the Court may restore the proceedings at its own initiative, requiring a formal application supported by evidence.
3. The court’s discretion on an application to restore the proceedings is expressly fettered by the wording of the rules- there must be promptness, a good reason for non-attendance, and a reasonable prospect of success at trial.

There is relatively little guidance on when a court will strike out a statement of case in the absence of a party. It should, in the writer’s experience, be assumed that this is the default position faced with a party absent and unrepresented without good reason, but the possibility of unusual circumstances justifying a different outcome cannot be wholly excluded. 

As may be anticipated, an application for restoration under these provisions also involves the application of the Denton test, Mabrouk v Murray [2022] EWCA Civ 960[8].

This is in addition to the other matters listed in CPR 39.3- though, clearly, at least some of these are subsumed within the general considerations of the Denton test. So, for example, a “good reason” for non-attendance is both a procedural requirement and more or less coterminous with the second limb of the Denton test, consideration of promptness and a reasonable prospect of success are significant components of the third limb; and so forth.

These limbs do mean what they say on their face. In Miah v Ullah [2021] EWHC 3712 (Ch)[9], a “good reason” for non-attendance means exactly that and is a strict requirement (mere oversight or misunderstanding was not good enough). By contrast, a “reasonable prospect of success at trial” meant exactly that- it was a low bar; presumably only somewhat more than bare arguability.

In reality, while non-attendance at trial is a more serious matter in general, the considerations on an application for relief may not be very significantly different than if it had simply been an application hearing which was missed.

In fact, much of the case law on CPR 39.3 concerns the distinction between this remedy and an appeal, or a prior application for an adjournment. See the consideration at [46]-[50] Fatima v Family Channel Ltd & Anor [2020] EWCA Civ 824[10].

1. An application under CPR 39.3 is not an appeal, it can be pursued instead of (or even alongside) an appeal.
2. An application to adjourn a trial in advance may, if anything, impose a harder test on an applicant, as a “good reason for non-attendance” would rarely be sufficient to warrant an adjournment. This does appear to border on perversity to the writer- surely it is better to seek permission than ask forgiveness- but that is the position at present.
3. It is possible (and probably wise) to do both- a party who cannot attend can apply for an adjournment, and if that is refused, and struck out for their absence, apply to restore the claim after the event. The discretion is wholly separate.
4. An appeal court will rarely intervene in a decision to refuse or grant restoration.

Is it an Application or a Trial?

As noted above, the boundaries between these provisions are controversial and at times confusing.

Clearly, a simple case of an application following a listing of a hearing following an N244 application will be precisely that, or a final trial of an action will be a trial.

But there is a grey area. Many simple disposal hearings, though final, have not been treated as “applications” rather than trials. So, for example, a possession hearing in the ordinary run of events, though final, is a brief and informal process will normally not be “a trial” Forcelux Ltd v Binnie [2009] EWCA Civ 854[11]. Similarly, a hearing to determine the disposal of property in the case of a bankruptcy was also not a trial Pickard v Roberts above.

Somewhat frustratingly, there is not (yet) any final answer. As noted with regret in Pickard v Roberts, it is a fact sensitive question:

It follows that it cannot be known before a case begins whether it will result in a decision or in directions. It is difficult, if Forcelux is correct, to see how, before the hearing begins, either party or the judge will know whether he is attending or conducting, on the one hand, a trial or, on the other hand, a hearing which is not a trial. The hearing cannot commence as a trial: it is only during the course of the hearing that it can change its status from that of a hearing to that of a trial. Such a possibility cannot, I accept, be ruled out: the parties may agree to this course in the exceptional sort of circumstances described in paragraph 33 above. It strikes me as a very odd result, however, in the typical sorts of case described in paragraphs 34 and 35 above.

Summary

In short:

1. In the case of an unattended hearing, consider carefully whether you are dealing with an application, or a trial. A different regime applies.
2. An application is a less serious matter. It will often proceed in the absence of the non-attending party. There are few other effects.
3. A trial is more serious. Non-attendance is tantamount, effectively, to a walk-over by the other side.
4. To have an order made in such circumstances overwhelmingly requires an application of the Denton test. The quicker the application is made, the better the reasons for the absence, and the better the prospects of success on attendance, the greater the chance of setting the order aside.
5. An attending party will often have a strong argument on costs regardless of the outcome.

About the Author

Robert Parkin was called in 2009. He has a mixed civil practice, including in the area of travel and cross-border claims. He was junior drafting counsel in Barclay-Watts & Others v Alpha Paraneti & Others [2019] HQ11X02379, a substantial cross border dispute involving mis-selling of holiday lets in Cyprus. 

[1] https://www.bailii.org/ew/cases/EWHC/Ch/2017/779.html

[2] https://www.bailii.org/ew/cases/EWCA/Civ/2002/1124.html

[3] https://www.bailii.org/ew/cases/EWHC/QB/2015/545.html

[4] https://www.bailii.org/ew/cases/EWHC/QB/2020/1571.pdf

[5] https://www.bailii.org/ew/cases/EWHC/Ch/2016/187.html

[6] https://www.bailii.org/ew/cases/EWCA/Civ/2014/906.html

[7] https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/QB/2020/1441.html

[8] https://www.bailii.org/ew/cases/EWCA/Civ/2022/960.html

[9] https://www.bailii.org/ew/cases/EWHC/Ch/2021/3712.html

[10] https://www.bailii.org/ew/cases/EWCA/Civ/2020/824.html

[11] https://www.bailii.org/ew/cases/EWCA/Civ/2009/854.html