England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER DISTRICT REGISTRY
(SHARP J)
REF: 8MA40076, [2012] EWHC 600 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/10/2012

Lord Justice Maurice Kay :

1. Where a party to litigation does not attend a hearing 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: CPR 39.3(3). Where such an application is made,

"the court may grant the application only if the applicant –

(a) acted promptly when he found 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) had a reasonable prospect of success at the trial."

Those are the requirements of Rule 39.3(5). The present appeal is concerned with the question whether Mr Peter Elliott "acted promptly" when he applied to set aside an order made against him in his absence.

The factual background

2. Mr Elliott is an experienced helicopter pilot who was engaged by WA Developments International Ltd (WADI) to provide aviation consultancy services and as a pilot until his relationship with WADI came to an end in March 2007. The termination of the relationship has engendered great acrimony. Mr Elliott maintained that he was forced to resign because of a dispute in which he had acted as a whistleblower. He alleged that WADI was conducting unlawful flying operations by providing charter flights which required an operator's licence from the Civil Aviation Authority (CAA). WADI had no such licence. In the circumstances, Mr Elliott was of the view that WADI and Mr Andrew Tinkler, its chairman, committed a criminal offence every time a flight took place. Mr Elliott reported WADI and Mr Tinkler to the CAA which conducted investigations but eventually decided to close its files and take no further action.
3. The case for WADI and Mr Tinkler was that Mr Elliott was completely misdescribing the circumstances of the termination of the relationship. It had resulted from Mr Elliott taking strong exception to a particular pilot who worked for WADI; he had become embittered and obsessive and had determined to wreak revenge on WADI for what he perceived to have been various injustices perpetrated against him. According to WADI and Mr Tinkler, this led to Mr Elliott making numerous unsubstantiated claims and allegations of wrongdoing of an extremely serious and damaging nature against them and others whom Mr Elliott had embroiled in the dispute, including some who had had only a tangential connection with the parties.
4. One of the matters in dispute between the parties concerned the sale of land in Cumbria on which Mr Elliott was then living. Mr Elliott commenced proceedings against Mr Tinkler in the Chancery Division, which proceedings were eventually compromised in July 2007 on terms contained in a schedule to a Tomlin order. In general terms, the parties agreed that all claims between them, including claims arising out of the termination of Mr Elliott's engagement, were settled on a full and final basis. As part of the compromise, Mr Elliott gave an undertaking on 13 July 2007 not to make or repeat damaging allegations about WADI and its associates. The undertaking was in the following terms:

"The Claimant provides the following Undertaking provided that he is not subject to any defamatory or slanderous statements coming to his attention from the Defendant or his companies. If the Claimant does receive knowledge of such statements he will put into writing to the Defendant his concerns and ask for a retraction within 7 working days of such statements. If he does not receive such a retraction then the Claimant is at liberty to defend himself as he sees fit in the circumstances.

I, Peter Elliott, on behalf of myself, my servants, agents or howsoever (to which all reference to 'I', 'myself' or like expressions in these Undertakings refer), undertake from the date hereof:

A that I shall not, whether by myself or by procuring, counselling or encouraging others to do so, make, permit, repeat or cause to be repeated, any allegation whatsoever to any third party, whether directly or indirectly, in whatever form or medium howsoever, whether orally or in writing (and if in writing in any medium whatsoever, including any electronic form):

(a) that [WADI], any associated company or firm, or their respective directors, employees or agents or howsoever, have acted in respect of the operation of any or all aircraft (be they fixed wing or otherwise), in a manner which is in breach of any statutory or other regulatory requirements of either the United Kingdom or the United States of America, or any other country, and/or which is otherwise contrary to the law of any country, save as I may be required to do so by compulsion of law.

(b) is otherwise defamatory of [WADI], any associated company or firm, its directors, employees, servants or agents or howsoever;

(c) with the intention of causing harm to the legitimate financial business interests of [WADI], any associated company or firm, its directors, employees, servants or agents or howsoever.

B to keep the facts of this dispute, this settlement and the terms of the settlement confidential and not to repeat the same to any third party without the express written permission of WADI and signed by a director save that I shall be at liberty, in answer to a specific question concerning this dispute, to respond that it has been settled amicably between the Claimant and the Defendant.

C to repeat these undertakings to a court of competent jurisdiction if required by WADI to do so.

These undertakings are given in full and final settlement of any previous allegations I made or may have made of a like nature to those paragraphs A (a), (b) and (c) above."

5. Unfortunately this did not bring the dispute between the parties to an end. On 18 September 2008, Mr Elliott issued proceedings for defamation against Mr Tinkler. The claim form repeated the allegation of unlawful flying operations. Shortly afterwards, on 21 November 2008, Mr Tinkler made an application without notice for an injunction to enforce Mr Elliott's compliance with his undertaking. The application came before HH Judge Hegarty QC sitting as a High Court Judge. He granted an interim injunction. On 24 November 2008, Mr Tinkler and WADI issued proceedings for damages and an injunction in the same terms as Mr Elliott's original undertaking which had been part of the Tomlin order. The Particulars of Claim relied on the terms of the Tomlin order and alleged that Mr Elliott had committed numerous breaches of it.
6. Between 24 November 2008 and 15 January 2009 there were further hearings in the course of which the injunction was continued. At one such hearing, on 15 January 2009, there was an application to commit Mr Elliott but it failed because he had not been properly served.
7. On 19 May 2009 HH Judge Tetlow widened the terms of the injunction. On 22 May 2009 Mr Tinkler and WADI applied to commit Mr Elliott for breach of Judge Tetlow's order. On 10 June 2009 this application came before HH Judge Main QC who found Mr Elliott to be in breach of the order of 19 May and sentenced him to three months' imprisonment for contempt. On 27 August 2009 a bankruptcy order was made against Mr Elliott following his failure to satisfy various orders for costs in this litigation.
8. In the course of 2009, Mr Elliott commenced various actions against Mr Tinkler, WADI or their associates. The defamation action he had commenced in November 2008 was struck out by a District Judge on a number of grounds including abuse of process. On 7 October 2009 an action was commenced against associates of WADI seeking millions of pounds of damages but this was struck out by Master Leslie as disclosing no reasonable cause of action and as an abuse of process. The Master adjourned a cross application for an extended civil restraint order to the trial of the present action. On 30 October 2009 Mr Elliott commenced further proceedings against Mr Tinkler and another but on 13 November these were struck out as an abuse of process by Judge Tetlow who also made an extended civil restraint order. All these proceedings commenced by Mr Elliott were certified as being totally without merit.
9. The trial of the present action came before Judge Tetlow on 15 March 2010. Mr Elliott did not attend and was not represented. He had sent a letter to the court from his general practitioner, dated 8 March 2010. It simply stated:

"This is to confirm that, in my opinion, the above named is not medically fit to attend court on Monday 15 March 2010."

On 12 March, the court listing officer had sent an email to Mr Elliott informing him that in the absence of a formal application to vacate the matter remained listed for trial on 15 March. Mr Elliott denies having received that email.

10. Nothing further was heard from Mr Elliott and the hearing on 15 March proceeded in his absence. In exchanges with leading counsel then appearing for Mr Tinkler and WADI, the judge referred to the letter from the general practitioner and the email to Mr Elliott. He added:

"… whatever happens, he will be able to apply to set aside the judgment as long as he provides (a) why he was not here, he might succeed on that, and (b) it shows a real prospect of success either on defending the claim or on counter-claiming …"

A short hearing then ensued at the conclusion of which the judge granted a permanent injunction. He dismissed Mr Elliott's counter-claim and made a general civil restraint order for two years.

11. I now turn to the subsequent chronology which is of crucial importance in the present appeal. The final order and the general civil restraint order were served on Mr Elliott on 15 March 2010. He was not served with a note of the hearing at that time. On 23 April 2010 Mr Elliott applied for an extension of time for permission to appeal against the order of 13 November 2009 which had struck out his recent proceedings against Mr Tinkler and another and had imposed the extended civil restraint order. On 23 June 2010, Deputy Master Meacher dismissed the proceedings in the Court of Appeal following Mr Elliott's failure to lodge a court bundle by the relevant deadline.
12. On 19 May 2011 Mr Tinkler and WADI applied to commit Mr Elliott for breach of the injunction which had been made on 15 March 2010. On a later date HH Judge Pelling QC found some of the alleged breaches to have been substantiated and imposed a suspended sentence of imprisonment.
13. On 21 July 2011 Mr Elliott applied to the Court of Appeal for permission to reinstate his appeal against the order of 13 November 2009 and for an extension of time for permission to appeal against Judge Tetlow's order of 15 March 2010. Both applications were refused on 19 October 2011 following a consideration of the papers by Sir Richard Buxton.
14. On 8 December 2011 Mr Elliott issued an application for permission to apply to set aside the order of Judge Tetlow which had been made on 15 March 2010. He also renewed his application for permission to appeal but, following an oral hearing, the renewed application was refused by Arden LJ on 14 December 2011.
15. On 5 January 2012, Judge Pelling granted Mr Elliott (as the subject of a civil restraint order) permission to apply to set aside the judgment and order of Judge Tetlow of 15 March 2010. He considered the application to be arguable whilst recognising that Mr Elliott may fail "on the basis that the application has not been made promptly". The application came before Sharp J on 16 February 2012. In a reserved judgment dated 15 March 2012, [2012] EWHC 600 (QB), she acceded to Mr Elliott's application and set aside the judgment and order of Judge Tetlow. On the issue of promptness, she said:

"104 ….[Mr Elliott] relies broadly on two matters: first his mental health, and second his ignorance that he could apply to set aside the judgment. As to the first, the Claimants say the medical evidence provides no plausible excuse for the Defendant's inaction. As to the second it is said by the Claimants that even if the Defendant was unaware that he could make an application, his ignorance is merely an explanation not an excuse. The Claimants naturally draw attention to the period of one year and eight months between when the Defendant found out about the judgment and his application for permission to bring this current application. [Counsel] submits that however flexible the concept of promptness, it cannot stretch to accommodate these facts. He refers in addition in general terms to the potential prejudice to the Claimants if a trial were now to take place because of the lapse of time since the relevant events, and the potential for memories to fade. Taking the latter point first, on the material I have seen, I regard it as unlikely in the extreme that anyone involved in any of the material events has anything other than a vivid recollection of their involvement in them."

16. After a brief reference to the authorities, she added:

"106. In my view, such an approach enables the court to do justice in the instant case in accordance with the overriding objective, which is what the Civil Procedure Rules are designed to achieve.

107. Here, the Defendant was in my judgment under a significant disadvantage throughout the material period as a result of the combination of the health problems to which I have referred (albeit they appear to have become more acute more recently: see letter of 6 September 2011 from a doctor who is an associate specialist in psychiatry) and the fact that he was acting in person, for all but one very short period when solicitors came on the record for a period of about two weeks shortly after the Claimants applied to commit him for contempt on 27 May 2011. I should mention too that the Defendant says, and I am disposed to accept, that his mental difficulties were triggered by his imprisonment in Strangeways for contempt in 2009. This was his first experience of prison since he was of previous good character.

108. It is true [Counsel] says that the Defendant was meanwhile doing various things relating to the litigation. For example, trying to issue judicial review proceedings in relation to the grant of planning consent at Southend Airport, and applying for permission to appeal against the order made by HH Judge Tetlow on 30 November 2009. However, I accept that the Defendant did not really understand that he could apply to set aside the judgment until he was refused permission to appeal in October 2011 where the fact that he could have made such an application was mentioned by Sir Richard Buxton as one of the reasons for refusal. Though setting aside judgment was mentioned at the hearing on 15 March 2010, the Defendant did not obtain the transcript until September 2011, but even then, he did not appreciate what he could do until after he received the reasons for refusing permission to appeal. It is also understandable in my view that the Defendant did not apply immediately after receiving those reasons. As he said, he had an outstanding application for permission to appeal which he intended to renew orally, and he been roundly criticised for making too many applications, with the result that he had been made the subject of the GCRO.

109. A litigant seeking to have a judgment set aside after this length of time would normally face an uphill struggle to persuade a court that he should be allowed to do so. In my view however this is a special case on its facts, and having regard to all the circumstances the Defendant has persuaded me that it would be right to do so.

110. This case is also unusual because permission to appeal against the order made by HH Judge Tetlow on 15 March 2010 has already been refused. But that in itself is not a bar to the grant of relief since, as [Counsel] accepts, the 'merits' issue on this application is whether the defence has a reasonable prospect of success. This a broader 'fact based' question, permitting examination of evidence, than the question addressed on the permission application, which is whether there is an arguable ground of appeal: see Bank of Scotland v Periera [2011] EWCA Civ 241 … in particular the observations of Lloyd LJ at paragraph 82.

111. It follows therefore that the judgment on the claim and counter-claim granted in the Defendant's absence will be set aside."

Sharp J did not rule upon the general civil restraint order, preferring to remit that for a further hearing.

17. Mr Tinkler and WADI now appeal to this court pursuant to permission granted by Sullivan LJ who referred to the delay as "very long indeed" and to the fact that Mr Elliott's mental health problems and the fact that he was a litigant in person had not prevented him from embarking on a great deal of litigation between March 2010 and December 2011. He further considered that, even if one were to take the starting point as 19 October 2011, when Sir Richard Buxton had observed that, as HHJ Tetlow had pointed out, Mr Elliott could have applied to have the order set aside, it was arguable that he had not acted promptly in commencing his application.

The authorities

18. In her judgment, Sharp J referred to both Regency Rolls Ltd v Carnall [2000] EWCA Civil 379 and Bank of Scotland v Periera (above). Regency Rolls has often been referred to on the issue of promptness. However, the members of this Court did not speak with one voice and what was said on this issue was strictly obiter. The case concerned a represented applicant whose application was made after a delay of 31 days, during part of which he had been unwell. Arden LJ said (at paragraph 24):

"The first issue is whether or not the application was made promptly. [Counsel] began his submissions by saying that promptness was a flexible concept. I think that a note of caution should be struck here. The dictionary meaning of 'promptly' is 'with alacrity'. I have grave doubts as to whether Mr Carnall acted with the requisite degree of alacrity but in view of my conclusion on other matters I need not decide this point. The principal 'other matter' was that Mr Carnall did not have a reasonable prospect of success."

19. Similarly, Rix LJ concluded (at paragraph 39) that Mr Carnall lacked any such prospect. He added:

"However broadly the concept of promptness might have to be regarded, for instance in a case where the appellant has an excellent case on appeal, in my judgment Mr Carnall here on any view failed to act promptly. He took another 26 or so days to make his application."

That quantification seems to have been an underestimate by about four days.

20. Simon Brown LJ also concluded that Mr Carnall had not established a reasonable prospect of success at trial. However, he added:

"44. But I wish to touch briefly on the question of promptness. As is pointed out in the footnote 39.3.7 to the Spring 2000 Civil Procedure White Book:

Note that the wording of Rule 29.3(5) provides more stringent requirements than CPR 0.37 r.2 which it replaces. The court no longer has a broad discretion. There is only jurisdiction to set aside a regular judgment if the party seeking to have the order set aside can satisfy all three requirements in R39.3(5).

45. This consideration must, I think, inform the court's approach to the construction of the word 'promptly' in pre-condition (a). At first blush it might be thought that any inappropriate delay whatever on the part of an applicant would require that he be found not to have acted promptly. Yet such a construction would carry with it the draconian consequence that, even if he had a good, perhaps compelling, reason for not having attended the trial, and a reasonable – perhaps, indeed, excellent – prospect of success at trial, the court would still be bound to refuse him a fresh trial. I would accordingly construe 'promptly' here to require, not that an applicant has been guilty of no needless delay whatever, but rather that he has acted with all reasonable celerity in the circumstances. That said, I too would regard the appellant here as having failed even in that obligation. Thirty days was altogether too long a delay before making this Part 39 application. Having regard to the long, and generally unsatisfactory, history of the proceedings to that point, the application plainly could, and in my judgment reasonably should, have been issued well before it was."

His Lordship then emphasised that it was not so much upon that ground but upon the lack of any worthwhile case on the facts, that he regarded the judgment below to have been plainly correct. He also noted (at paragraph 46) that in a case where all three preconditions are satisfied, "any residual discretion … must necessarily be somewhat narrow".

21. In her judgment in the present case, Sharp J set out much of paragraph 45 but omitted the three final sentences.
22. In Bank of Scotland v Periera, Lord Neuberger MR stated:

"24. 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 … , 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. …

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 prejudge 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. … 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 it can therefore only interfere if satisfied that the judge was wrong."

23. In his judgment, Lloyd LJ expressed agreement with the Master of the Rolls (at paragraphs 77 and 110). Gross LJ added his agreement (at paragraph 117), concentrating on the relationship between an appeal and an application under CPR 39.3(3) and noting that "an applicant cannot achieve by the back door of an appeal that which could not have been achieved or which the applicant failed to achieve by way of an application under CPR 39.3(3)".
24. We were also referred to Standard Bank PLC v Agrinvest International Inc [2009] EWHC 1692 (Comm) in which Field J was concerned not with CPR 39.3 but with CPR 13.3 which is concerned with applications to set aside judgments entered in default. Unlike CPR 39.3, CPR 13.3 does not have a mandatory condition of promptness. That is simply a matter to which the court "must have regard". Field J said (at paragraph 27):

"In my judgment, although promptness may not be the controlling factor under CPR 13.3, it is plainly a very important factor, as is evident from the fact that it is singled out in the Rule as a matter to which the court must have regard. It is a very important factor because there is a strong public interest in the finality of litigation. Put simply, people are entitled to know where they stand."

25. It seems to me that the authorities support the following propositions: (1) promptness is a mandatory requirement; (2) it requires the applicant to act "with all reasonable celerity in the circumstances"; (3) only if the mandatory requirements are satisfied does the court have a discretion which, at that stage, is "somewhat narrow"; (4) this court has a reviewing, as opposed to a rehearing function and can only interfere if satisfied that the judge below was wrong.

Discussion

26. Below before Sharp J there was an issue as to whether Mr Elliott had had a good reason for not attending the hearing before Judge Tetlow but her finding in his favour on that issue is not challenged on this appeal. Moreover, it is accepted that there were triable issues in respect of which Mr Elliott had a reasonable prospect of success. Thus, the only issue now is that of promptness.
27. The question for us is whether Sharp J was wrong to conclude that, notwithstanding the delay of some 18 months from notice of the judgment to the making of the application to set aside, Mr Elliott acted promptly in the particular circumstances of this case. In making his submissions, Mr Elliott asks us to approach the issue of promptness with a maximum of flexibility, imbued with the spirit of the overriding objective of dealing with the case justly in accordance with CPR 1.1. He comes close to saying that an applicant with a reasonable explanation for his original non-attendance and who has reasonable prospects of success at trial, should be given every opportunity to have his case considered on the merits, even after a delay such as the one in this case.
28. The flaw in that approach is that it invests the judicial decision with a degree of discretion which is contrary to the structure of CPR 39.3(3). The element of discretion – "the court may grant the application" – comes into play only after the applicant has satisfied the three positive requirements, including that of promptness. He must show, adopting the words of Simon Brown LJ in Regency Rolls, that "he has acted with all reasonable celerity in the circumstances". The judge's approach at that stage is essentially evaluative rather than discretionary.
29. When first addressing the issue of promptness, Sharp J noted the two matters relied upon by Mr Elliott, namely his mental health and his ignorance, as a litigant in person, of the availability of an application to set aside. She concluded (at paragraph 107) that he had been "under a significant disadvantage throughout the material period as a result of the combination of the health problems … and the fact that he was acting in person for all but one very short period …" Accordingly, she set aside the judgment and order of Judge Tetlow. The question is whether, on the material before her, she was entitled so to do.
30. As to the medical evidence, there is no doubt that Mr Elliott, who had not suffered from mental health problems before the development of this dispute, did have such difficulties during the relevant period, although (as Sharp J observed) they seemed to have become more acute more recently. She was prepared to accept that they were first triggered by his experience of imprisonment following his committal for contempt. I see no reason to go behind that finding. However, what cannot be said is that Mr Elliott was incapable of functioning as a litigant in person throughout the relevant period. Indeed, on any view he was an extremely active litigant in relation to these adversaries: see paragraphs 12-14 above. His activity included an attempt to rid himself of Judge Tetlow's judgment and order, albeit by way of an out-of-time application for permission to appeal rather than an application to set aside. When the application for permission to appeal finally came before Arden LJ on 14 December 2011, she was prepared to accept that Mr Elliott had had capacity problems but she also found that there had been a window between April and July 2011 when he was not significantly afflicted. She extended time but refused the application for permission to appeal on the ground that the proposed appeal did not have a real prospect of success. Looked at in isolation, I do not consider that Mr Elliott's health issues were capable of justifying a finding of promptness. Indeed, I do not think that Sharp J did either. Her conclusion was that it was the health issues in combination with acting in person that enabled Mr Elliott to establish promptness.
31. The implications of Mr Elliott being a litigant in person were considered by Sharp J to be significantly disadvantageous to him, in particular because he "did not really understand that he could apply to set aside the judgment until he was refused permission to appeal in October 2011 where the fact that he could have made such an application was mentioned by Sir Richard Buxton". Although he had received a copy of the transcript of the proceedings before Judge Tetlow (in which the possibility of an application to set aside was mentioned) in September 2011, "even then he did not appreciate what he could do until after he received the reasons for refusing permission to appeal" in October.
32. I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins. An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant in person "did not really understand" or "did not appreciate" the procedural courses open to him for months does not entitle him to extra indulgence. Even if one factors in Mr Elliott's health problems, the evidence shows that between April and July 2010 he was active in this litigation. The fact that, if properly advised, he would or might have made a different application then cannot avail him now. That would be to take sensitivity to the difficulties faced by a litigant in person too far. In my judgment, this is where Sharp J went wrong. She regarded this to be "a special case on its facts" but it could only be considered such if one goes too far in making allowances for a litigant in person. For these reasons, I do not consider that it was open to her to find the promptness requirement satisfied.
33. In these circumstances, it is unnecessary to consider the appellant's alternative submission that, even if one takes the starting point to be September 2011, when Mr Elliott first saw the transcript containing Judge Tetlow's reference to the possibility of an application to set aside, or October 2011 (following the comment of Sir Richard Buxton) the application was not issued promptly on 8 December 2011. However, I am inclined to say (without deciding the point) that there is force in the submission. In this as in other areas, the later the acquisition of relevant knowledge, the more demanding is the requirement of promptness.
34. Finally, I should address the point that the effect of allowing this appeal will prevent Mr Elliott from obtaining a judgment on the merits when, as Sharp J found, he had had a good reason for not attending the trial, at which he had a reasonable prospect of success. The answer is that CPR 39.3(2), unlike CPR 13.3, makes promptness a mandatory precondition. Moreover, if an applicant is doomed to fail under CPR 39.3(2) because he cannot satisfy the requirement of promptness, he may nevertheless be able to obtain an extension of time to make an application for permission to appeal if he merits an extension of time and the proposed appeal has a real prospect of success. Extension of time in that context is a discretionary matter. Promptness in this context is not.

Conclusion

35. It follows from what I have said that I would allow this appeal. In so doing, I record the Court's gratitude to counsel and to Mr Elliott, who made his submissions in difficult circumstances but with commendable restraint and the utmost courtesy.

Lord Justice Munby;

36. I agree.

Lord Justice Lewison;

37. I also agree.