CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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THOMSON DIRECTORIES LIMITED |
Claimant |
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- and - |
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(1) PLANET TELECOM PLC (2) DANCIBAR LIMITED (3) 192 ENQUIRIES.COM LIMITED (4) PETER HUTCHEON |
Defendants |
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THE FIRST, SECOND AND THIRD DEFENDANTS did not appear and were not represented.
THE FOURTH DEFENDANT appeared in person.
Hearing date: Friday, 4th July 2003
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Crown Copyright ©
Mr Justice Laddie:
"(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 … paragraph (3) for an order to restore proceedings must be supported by evidence.
(5) Where an application is made under paragraph ... (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 that the court had exercised its powers to strike out or to enter judgment or make an order against him;
(b) had a good reason for not attending at trial; and
(c) had a reasonable prospect of success at the trial."
"Note that the wording of r.39(3)(5) provides more stringent requirements than CCR.O.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 r.39.3(5)."
"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."
"The fourth defendant must issue and serve on the claimant's solicitors any application he wishes to make to set aside the order of Mr. Alan Steinfeld QC sitting as a Deputy Judge dated 6th March 2003 by 4 pm on 24th April 2003."
"It was clearly out of the question to me. That is why I did not attend."
"There would be a slight throbbing pain and when it comes to cross-examination of witnesses I might miss a point, and the would be unfair to me".
"Dear Miss Peermohamed, could you urgently advise the appropriate people that I will not be able to attend court today or tomorrow. I deeply regret this".
"I received your email on my arrival in the office this morning and have since tried to call you on your mobile and office phone numbers to no avail. Please would you produce a medical certificate or signed statement from your doctor as a matter of urgency attesting to the fact that you are unable to attend court today as a result of your condition."
"14. Dr. Rout confirmed that Mr. Hutcheon suffered from chronic lower back pain from time to time and has been on anti-inflammatory medication in the past. He confirmed that he had examined Mr. Hutcheon in the morning of 6th March, but that he could not tell from the examination whether Mr. Hutcheon's condition had recurred as 'pain is subjective'. He told me that Mr. Hutcheon had said he had been getting worse for the last few days and had nearly collapsed yesterday. Dr. Rout said that Mr. Hutcheon had claimed the problem only occurred when he stood upright, and that he would not be able to stand up to give evidence.
"15. Dr. Rout confirmed that he had prescribed anti-inflammatory medication to Mr. Hutcheon and had signed him off work. Dr. Rout told me there was no reason why Mr. Hutcheon could not give evidence sitting down. He also confirmed that if Mr. Hutcheon had been able to travel to see him in Bolton from Liverpool today then he could travel to London today."