COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
HER HONOUR JUDGE KNOWLES
(On appeal from District Judge Wicks)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACOB
LORD JUSTICE MOSES
| Estate Acquisition and Development Ltd
|- and -
|Wiltshire & anr
||Appellants / Defendants
Gary Blaker (instructed by Messrs Peter Mercadante & Co) for the Respondent
Hearing dates: Thursday 27th April 2006
Crown Copyright ©
Lord Justice Dyson :
"(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."
The District judge
"The reason for his non-attendance was that he did not know that the trial was taking place on that day. The matter does not, however, stop there. In order to determine whether that was a good reason it is necessary to consider why he did not know of the trial date. The fact that at the time he was acting in person, that he is illiterate and he did not receive the order of the 19th March are clearly relevant factors."
"49. It seems to me, therefore, that when I look at what is said in the case of Brazil, particularly in that paragraph, and having looked at what the District Judge said in his judgment in this case, what he has actually concentrated upon and what he has focused upon is the fact that he is satisfied that the respondents were not aware of the hearing date. What he has not gone on to analyse, and what he should have done, was as to whether there was some good reason for that. Had he done that then I consider that it is inevitable that he would have then had to go back through the history of the matter – as, indeed, I have – and to make finding as to whether or not there had been a change of address notified to the agents; as to what steps the Respondents had taken to ensure that they could have access to post from the property, and he would have had to make appropriate findings.
50. He does not do that. As I say, it is my view that he simply says that they have not been back to the property and that he accepts that evidence. That, I am afraid, does not answer the fundamental question. It does not answer the fundamental question as to whether there has been good reason.
51. I can speculate as to why the Respondents behaved in the way that they did from 1996/1997 right round to the point in time as to when they said they discovered that this order had been made but, whatever the reasons may be, they have not advanced cogent reasons before me as to how it was that they could possibly have behaved in such a way that they made it quite plain that they wanted no trace of themselves to be left anywhere; that they wanted to achieve a situation in which the managing agents could not at any point contact them and, indeed, at the point where they did come into communication in 1999 with regard to the leaking tap, and when a phone number was asked of them, that was steadfastly refused."
The principal ground of appeal
"There has been some debate before us, as there was before the judge, about what is or is not capable of being a "good reason." In my opinion the search for a definition or description of "good reason" or for a set of criteria differentiating between good and bad reasons is unnecessary. I agree with Hart J that, although the court must be satisfied that the reason is an honest or genuine one, that by itself is not sufficient to make a reason for non-attendance a "good reason." The court has to examine all the evidence relevant to the defendant's non-attendance; ascertain from the evidence what, as a matter of fact, was the true "reason" for non attendance; and, looking at the matter in the round, ask whether that reason is sufficient to entitle the applicant to invoke the discretion of the court to set aside the order. An over analytical approach to the issue is not appropriate, bearing in mind the duty of the court, when interpreting the rules and exercising any power given to it by the rules, to give effect to the overriding objective of enabling it to deal with cases justly. The perfectly ordinary English phrase "good reason" as used in CPR 39.3(5) is a sufficiently clear expression of the standard of acceptability to be applied to enable a court to determine whether or not there is a good reason for non-attendance."
Lord Justice Moses:
Lord Justice Jacob: