COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NOTTINGHAM COUNTY COURT
HER HONOUR JUDGE HAMPTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACOB
MR JUSTICE WARREN
| FORCELUX LIMITED
|- and -
|MR MARTYN EWAN BINNIE
Mr Mark Diggle (instructed by Messrs Langleys) for the Respondent
Hearing date: Tuesday 14th July 2009
Crown Copyright ©
Mr Justice Warren:
"(a) acted promptly when he found out that the court had exercised its power 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 trial."
"(1) At the hearing fixed in accordance with rule 55.5(1) or at any adjournment of that hearing, the court may(a) decide the claim; or(b) give case management directions.
(2) Where the claim is genuinely disputed on grounds which appear to be substantial, case management directions given under paragraph (1)(b) will include the allocation of the claim to a track or directions to enable it to be allocated.
(3) Except where (a) the claim is allocated to the fast track or the multi-track; or(b) the court orders otherwise,any fact that needs to be proved by the evidence of witnesses at a hearing referred to in paragraph (1) may be proved by evidence in writing.(Rule 32.2(1) sets out the general rule about evidence. Rule 32.2(2) provides that rule 32.2(1) is subject to any provision to the contrary)
(4) Subject to paragraph (5), all witness statements must be filed and served at least 2 days before the hearing."
"32.2 (1) The general rule is that any fact which needs to be proved by the evidence of witnesses is to be proved
(a) at trial, by their oral evidence given in public; and
(b) at any other hearing, by their evidence in writing.
(2) This is subject
(a) to any provision to the contrary contained in these Rules or elsewhere; or
(b) to any order of the court"
The first issue "trial"
Conclusion on the first issue
The second issue discretion
"take any other step or make any other order for the purpose of managing the case and furthering the overriding objective."
"A power of the court under these Rules to make an order includes a power to vary or revoke the order."
"Once judgment had been obtained in his absence, it would have been obvious to any competent solicitor that CPR 39.3(5) might be engaged. It had not been necessary to get to grips with the whole of the case in order to decide whether to make an application."
a. the interests of the administration of justice; there is nothing which suggests that the interest of the administration of justice would be prejudiced or compromised if the application for relief were granted;
b. whether the application for relief has been made promptly; I doubt very much that it was and proceed on the footing that it was not;
c. whether there is a good explanation for the failure; none has been provided. HH Judge Hampton herself observed that there was no explanation (but see paragraph 65 below);
d. whether the failure was caused by the party or his legal representative; the failure appears to have been entirely that of Mr Binnie's solicitors;
e. the effect which the failure to comply had on each party; Mr Binnie will lose a valuable asset for want of payment of a comparatively modest sum which he attempted to pay by cheque in December 2007, his cheque being returned.
f. the effect which the granting of relief would have on each party; the Lease would be reinstated. Forcelux would lose what I think can fairly be described as a windfall.
Lord Justice Jacob:
Lord Justice Ward: