Jesus Everlasting Foundation Ministry International v McKinde

This is a renewed application for permission to appeal the decision of Mr Recorder Lowe sitting in the Southend County Court on Wednesday, 25 March 2015. By his decision the Recorder dismissed an appeal from the decision of District Judge Dudley dated 9 April 2014 refusing to grant Mr McKinde and his company, the first and second applicants, relief from sanctions. The relevant sanction was that of striking out the defence and counterclaim which had been imposed because the appellants had failed to attend a case management hearing at an earlier stage of the proceedings.

The applicants are aggrieved by the decision of the Recorder. They were the defendants in the action, in which serious allegations of fraud were made against them. They find themselves in a position where judgment has been entered and, understandably, are concerned that their defence and their counterclaim had not been heard. However, the substance of the decision of District Judge Dudley in refusing to grant relief from sanctions was that the applicants had not provided him with any good reason for the non-attendance at the case management hearing.

District Judge Dudley did not direct himself specifically by reference to CPR 3.9, as he should have done. On the appeal to the Recorder the applicant submitted that District Judge Dudley had in effect applied the rule which is applicable where a party seeks to set aside a judgment obtained after a trial in his absence, namely CPR 39.3. That rule of course is more stringent than that which would be applied to a case management decision.

Mr Recorder Lowe was not unsympathetic to that submission and accordingly looked afresh at the matter, applying the CPR 3.9 test to the facts of the case. He concluded that the failure to attend was a non-trivial breach of the rules; that there had been no good reason given for the breach and that, considering all the circumstances, there was no reason to grant relief from sanctions. In the course of his judgment he observed that the reason for non-attendance had been unsupported by evidence and relied on the applicant’s previous failure to comply with court orders.

The appeal is founded on three grounds. Firstly, that the district judge had applied the wrong test in law and the Recorder was wrong to say that he had not; secondly, that the Recorder was wrong to hold that the applicant’s application for relief from sanctions was unsupported by evidence; and, thirdly, the Recorder placed undue weight on the appellant’s previous non-compliance with court orders.

Moore-Bick LJ refused permission to appeal to this court on the papers. The application is renewed today by Mr Makula of counsel on behalf of the applicants. As to the first ground, the Recorder could of course have remitted the case to the district judge for reconsideration in light of the correct test. Mr Makula submits that that is the only proper course that he could have taken. However, no purpose would have been served by doing so. In my judgment, the Recorder was entitled and indeed right to review the case in the light of the correct test and to see if any different result would have ensued. He was in just as good a position as the district judge to review the written materials and to conclude what the correct outcome should be.

Mr Makula refers to the fact that District Judge Dudley saw Mr McKinde and was able to ask him questions, but the Recorder had a transcript of everything that transpired and I do not think it realistic to suppose that the Recorder was disadvantaged in any way. In my judgment, this aspect of his decision cannot be faulted.

As to the second ground, this was not very strenuously supported in the skeleton argument and not mentioned at all by Mr Makula this morning This ground was that the Recorder said that the explanation for non-attendance was not supported by evidence. The bundle does contain a first witness statement of Michael McKinde, the first applicant, but it is signed and dated 16 April 2014, which is after the application for relief from sanctions was heard. Nevertheless, it is clear that this or a similar document, at least in draft, was before District Judge Dudley.

Paragraph 7 of the witness statement says: “Our failure to [attend] the hearing was a genuine oversight as we got the dates mixed up, which we duly apologise.” That is the extent of the explanation offered in the witness statement, or draft witness statement, whichever it was.

At the hearing before District Judge Dudley the first applicant was asked to expand on the reasons for non-attendance. That is when the applicant gave a more detailed explanation. The passage of the transcript in which the district judge extracted the further information is set out in extenso in paragraph 5 of the Recorder’s judgment, including the quotation from paragraph 7 of Mr McKinde’s draft / witness statement.

In those circumstances, it seems to me that the Recorder was entirely aware of everything which had been said by the first applicant by way of excusing the failure. It is not clear that any evidence strictly so-called was before District Judge Dudley. In any event, the substance of the explanation had not been contained even in draft evidence but was merely brought forward under questioning at the hearing. I do not think anything of substance went wrong here.

The third ground of appeal is simply that the judge attached undue weight to one of the factors which he was plainly entitled to have regard to under CPR 3.9. That again is a ground which Mr Makula wisely did not expand orally. The idea that this court would interfere with a case management decision on the basis that the judge attached more weight or less weight to a particular legitimate factor than he should have done is not realistic.

Thus far I have not mentioned that this is a second appeal and therefore I can only grant permission to appeal if the case raises an important point of principle or practice or has some other compelling reason for this court to hear the appeal. In my judgment, this application does not reach the threshold for a first appeal, but I am wholly unable to detect any point which would justify the court in entertaining a second appeal. For those reasons I refuse permission.