Emojevbe v Secretary of State for Transport

This is the appeal of Dr Frederick Emojevbe (the appellant) against an order of Jay J dated 22 April 2015 dismissing his appeal against an order of HHJ Carr made at the Central London County Court on 26 September 2012.

HHJ Carr refused an application by the appellant (the claimant in the action) for the adjournment on medical grounds of a trial listed for hearing on 26 September 2007. HHJ Carr granted summary judgment for the defendant, the Secretary of State for Transport (the DVLA) in the appellant’s absence. Jay J subsequently dismissed his appeal and it is against the order that the appellant now appeals.

The case turns on the interpretation of CPR 39.3(3) the rule where the power for setting aside a judgment based on the failure to attend a trial is found.

Before considering the background to the claim it is useful to set out the terms of CPR 39.3 which governed the application.

“39(3)(1) The court may proceed with a trial in the absence of a party but –”

(a)

if no party attends the trial, it may strike out the whole of the proceedings;

(b)

if the claimant does not attend it may strike out his claim and any defence to the counterclaim; and

(c)

if the defendant does not attend, it may strike out his defence or counterclaim (or both).

(2)

Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.

(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.

CPR r39.3(4) requires an application to be supported by “evidence”. The basis upon which an application will succeed is found in CPR r39.3(5):

“39.3

(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 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 appellant is a citizen of Nigeria but has, for a substantial period of time, been a resident of the United Kingdom. In July 2007 he made an application for a driving licence from the DVLA. The DVLA’s leaflet which accompanies an application for a licence, advises applicants that if they wish to have identity documents returned to them by special or recorded delivery they should include a stamped, self-addressed special delivery envelope. The appellant submitted his application together with three Nigerian passports, and a special delivery, stamped addressed envelope.

The application for a driving licence was refused and on 21 July 2007 the passports were posted back to the Appellant by first-class post. The passports were never delivered and the DVLA accept that the special delivery envelope supplied by the appellant, for reasons which are not clear, had not been used by them to return the documents.

The appellant’s occupation as described in his Amended Particulars of Claim was that of a self-employed education consultant. The main offices were in Nigeria and his work involved extensive international travel, in particular between the UK and Nigeria. The appellant’s case is that as a consequence of the DVLA’s negligence, he was unable to pursue his occupation as absent a passport he was unable to travel. The period of time he was without travel documents was such that irreparable damage was caused to his business and as a consequence he sustained substantial economic loss.

Upon instructions from the appellant, solicitors on behalf of the appellant wrote to the DVLA on 24 October 2007 highlighting the financial difficulties the appellant found himself in as a consequence of having no passport. The letter informed the DVLA that, although he had now applied for a new Nigerian passport, he had not yet received the same. Although by that stage the appellant had only been without his passport for about three months, the letter sought compensation in the sum of £127,250.50 being his annual gross income. It was said in the letter that he was entitled to a year’s loss of income because he earned the bulk of his income during August and September each year.

It was not until 2 June 2010 that the particulars of claim were filed in the High Court. This is a case which has thereafter been dogged with procedural delay and mishap; suffice it to say for the purposes of this appeal, that the case eventually found its way to the correct court and case management conferences were conducted by a circuit judge on 29 February 2012 and 18 July 2012, prior to a listing appointment for a trial date being conducted by telephone on 14 August 2012. It is not clear precisely how many hearings have taken place for which the appellant has had to attend court, he believes it to be about 5, but in any event there is no suggestion that he had previously failed to attend court when required to do so or had sought adjournments for any reason on any earlier occasions.

On 16 August 2012 notice was given of a trial date six weeks hence on 26 September 2012. On 24 September 2012, two days before the trial, the appellant made a written application for an adjournment of the hearing due to having an injured knee. That application was refused and on 26 September 2012 HHJ Carr granted summary judgment for the DVLA upon the appellant’s failure to attend the hearing.

There followed an extensive period of what can only be described as wholly unacceptable procedural anarchy in relation to which it is not necessary to elaborate. It was not until 22 April 2015, pursuant to permission to appeal out of time having been given by Teare J on 24 February 2015, that Mr Justice Jay heard the appellant’s appeal against HHJ Carr’s order of 26 September 2012.

The relationship between CPR Part 52 Appeals and an application to set aside judgment pursuant to CPR 39.3 was considered by the Court of Appeal in Bank of Scotland plc v Pereira and Others (Pereira) [2011] EWCA Civ 241; [2011] 1 WLR] 2391. In Pereira at [37] Lord Neuberger MR confirmed that where a defendant seeks a new trial on the ground that he/she did not attend the trial CPR 39.3 is the proper route. This will involve a determination as to whether or not the criteria found in 39.3(5)(a)-(c) are satisfied. In Pereira Lord Neuberger, MR, [47] held that an appeal court may:

Lord Neuberger went on to set out the principles applicable to applications under CPR r39.3 at [24]

“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 pre-judge 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 an 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 . . .”

Earlier in Brazil v Brazil [2002] EWCA Civ 1135, Mummery LJ had considered “good reason” :

“[12] 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 an order.”

The year after Pereira was decided, Norris J considered an appeal against a refusal to grant an adjournment on medical grounds in Levy v Ellis Carr and Others [2012] EWHC 63 (Ch). That case was not therefore a CPR r39.3 case and was one where there was a history of applications for adjournments and non-co-operation on the part of the appellant. Norris J said :

“[36] ……The medical evidence required to demonstrate that a party is unable to attend a hearing and participate in the trial . . . should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all resultant recent consultations), should identify with particularity what the patient’s medical condition is and the features of that condition, which (in the medical attendant’s opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is independent opinion after proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party’s difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case).”

In Forresters Ketley v Brent and Another [2012] EWCA Civ 324, heard shortly after Levy, a late application for an adjournment of a hearing was refused in relation to a litigant in person suffering from stress associated with the litigation. Lewison LJ expressed his agreement with the approach of Norris J in Levy v Ellis Carr. In addition he said at [25]:

“. . . Whether to adjourn a hearing is a matter of discretion for the first instance judge. This court will only interfere with a judge’s exercise of discretion if the judge has taken into account irrelevant matters, ignored relevant matters or made a mistake of principle. Judges are often faced with late applications for adjournments for litigants in person on medical grounds. An adjournment is not simply there for the asking.”

In TBO Investments Ltd v Mohun Smith and Another [2016] EWCA Civ 403, [2016] 1 WLR 2919, Lord Dyson MR considered how Levy on the one hand and Pereira on the other fit together. TBO Investments also related to an application for an adjournment by a defendant litigant in person, the medical basis for the application being stress caused, in large measure, by the pressure of the proceedings. On that occasion, the judge at first instance dismissed the application for an adjournment and entered judgment for the claimants in a sum in excess of £2m. The appeal judge subsequently refused the applicants’ application to set aside the judgment pursuant to CPR 3.39(3).

Lord Dyson, on appeal to the Court of Appeal, took the opportunity at [18] – [30] to examine the authorities in relation to sufficiency of medical evidence such as to justify the granting of an adjournment. In response to the submission that the judge had been right to apply the stringent observations of Norris J in Levy Lord Dyson said:

“[24] I recognise that an appellate court should be slow to interfere with the decision of a lower court on the question of whether a litigant had a good reason for not attending a trial. Such a decision is a fact-sensitive evaluation made in the light of all the circumstances. It is the kind of decision that an appellate court will only strike down for reasons analogous to those which justify interfering with an exercise of discretion. But in making that assessment, the judge must have regard to the guidance given in Pereira and Estate Acquisition and the need, when applying rule 39.3(5)(b), to seek to give effect to the overriding objective of dealing with cases "justly" and to comply with article 6 of the European Convention on Human Rights This is particularly important where, as in the present case, the party has a reasonable prospect of success at the trial. In such a case, the court should usually not adopt a very rigorous approach to the question whether the litigant has shown a good reason for not attending.”

Lord Dyson went on to say that nothing he was saying within the judgment should be interpreted as casting doubt on the guidance given in Levy saying that:

“[25] Generally the court should adopt a rigorous approach to scrutinising the evidence adduced in support of an application for an adjournment on the grounds that a party or witness is unfit on medical grounds to attend trial.”

Lord Dyson went on to discuss what, at first blush, might be regarded as a tension between the Pereira guidance relating to CPR r 39.3 on the one hand and Levy with regard to applications to adjourn on medical grounds, on the other :

“[26] But I accept the submission of Mr Burgess that there is a material distinction between an application under rule 39.3(3) and an application for an adjournment of a trial. If the court refuses an adjournment, there will usually be a trial and a decision on the merits, although the unsuccessful applicant will be at a disadvantage, possibly a huge disadvantage, by reason of the absence of the witness or the party himself. Despite their absence and depending on the circumstances, it may still be possible for the disadvantaged claimant to prove the claim or the disadvantaged defendant to resist it. I accept that, in some cases, the refusal of an adjournment will almost inevitably lead to the unsuccessful applicant losing at trial. That is a factor that must be borne in mind when the court exercises its discretion in deciding whether or not to grant an adjournment. But if the application to set aside a judgment under rule 39.3(3) fails, the applicant will have had no opportunity whatsoever to have an adjudication by the court on the merits. This difference between an application under rule 39.3(3) and an application for an adjournment of the trial is important. Although it has not been articulated as the justification for generally adopting a more draconian approach to an application for an adjournment than to an application under rule 39.3(5), in my view it does justify such a distinction. It follows that the judge should have applied the Pereira guidance rather than the Levy guidance in so far as there is a difference between the two.”

Following TBO Investments the position seems to be that:

The appellant’s application for an adjournment made on 24 September 2012 enclosed a “fit note” (formally called a sick note) dated 17 September 2012 saying that the appellant was not fit for work due to “knee pain”. Also attached was a letter from the Lewisham Health Care NHS Trust notifying the appellant of an outpatient appointment at the hospital, at the orthopaedic clinic, for an x-ray of his knee.

It was in the light of this information that the application for the adjournment was refused. When the matter came on before Jay J, he had additional information, both pre and post-dating September 2012. On 1 June 2012 a request was made by the appellant’s GP for an x-ray. Fit notes were issued by the GP on 30 July and again on 17 September. The appellant duly attended for his x-ray on 2 October 2012 and, on 10 December 2012, the appellant had surgery to his right knee in the form of an arthroscopy for a meniscal tear. A fit note was issued to cover the period 16 November 2012 to 9 January 2013.

The judge directed himself that he had to consider all the available evidence “in particular the medical evidence in the bundle in the light of the governing authority, namely the decision of Norris J in Levy v Ellis Carr”. The judge had the benefit of the more extensive medical evidence set out above when considering whether, pursuant to CPR 39.3(5)(b), the appellant had a good reason for not attending the trial. In dismissing the application to set aside the decision of HHJ Carr, the judge said:

“[23] The issue for me is whether, in the light of all that evidence, the appellant had a good reason for not attending the trial. If the evidence demonstrated, on the balance of probabilities, that the appellant was simply unable physically to attend court then I would be prepared to conclude that he had good reason for not attending the trial. However the evidence simply does not go that far. At its highest it demonstrates that he was unfit to work. I say at its highest, since if one considers the guidance set out by Norris J in Levy v Ellis Carr and Others the appellant has fallen far short of complying with it.

[24] Although he may have been unfit to work, I am not satisfied on the balance of probabilities that he was physically incapable to attend the trial. It might have been difficult for him to have got to court, but he was able to attend the hospital on several occasions, as I have indicated, with the assistance of friends, and I have to say that this trial was of equal importance. Furthermore, the appellant has this additional difficulty. He made his application as late as 24 September 2012. I am prepared to accept that his condition may well have deteriorated after the trial date was set in August 2012, but on any view it is extremely late to be making an application of this sort and in this manner.”

The judge concluded therefore:

“[25] In my judgment he has failed to demonstrate, on the balance on probabilities, and drawing frankly the inferences most favourable to him, that he had a good reason for not attending the trial and I emphasise that on reaching that conclusion, I have regard to all the available evidence.”

That finding, the judge observed, was in itself sufficient to dispose of the appeal but, given the cumulative nature of the test, he properly moved to consider the third limb of CPR r39.5(c), namely whether or not the appellant had a reasonable prospect of success at trial. The judge had no hesitation in concluding that a claim in contract does not have a reasonable prospect of success. He was however less ready to reach the same conclusion in relation to the appellant’s claim in tort. The judge dealt with the matter shortly, saying that, on the basis of the information and limited submissions he had available to him, he was not prepared to find that the appellant did not have a reasonable prospect of success at trial. In his view the case hinged on the second issue, namely whether the appellant had failed to demonstrate that he had a good reason for not attending the trial.

Followed the granting of permission to appeal by Beatson LJ on 3 June 2016, the DVLA issued a Respondent’s Notice on the grounds that Jay J, in addition to having concluded that the appellant had failed to show a good reason for not attending trial (CPR 39.3(5)(b)), should also have concluded that the appellant had also failed to satisfy CPR 39.3(5)(c), namely that he had a reasonable prospect of success at trial.

The appellant, who appeared in person, submitted that in respect of ‘good reason’, the judge had been wrong in refusing the application to adjourn and in having proceeded in his absence. The medical evidence before him was, he said, more than adequate to show that he was not only not fit to work but not fit to attend court. The appellant said he had attended court whenever he had been required to do so and, far from having wished to put off the trial, given the financial position he found himself in due to the loss of his passports, he was particularly anxious for the trial to take place in order for him to be awarded the compensation which he felt to be his due.

Mr Hare, for his part, reminded the court that this was a review of the discretionary exercise of the judge’s judgment and the court should therefore be slow to interfere with the judge’s decision. Mr Hare acknowledged that the judge had regarded himself as being governed by the stringent test found in Levy, but submitted that the evidence produced by the appellant did not in any event satisfy the less rigorous test found in Pereira. Reasonable adjustments, he said, could have been made to accommodate the appellant’s mobility difficulties and his knee pain did not in itself amount to a good reason for not attending the hearing.

Mr Hare emphasised the fact that TBO Investments was a very different case on its facts. It was, he reminded the court, a case which had been listed for 7 days and therefore far more challenging than this case; further, the medical evidence ultimately put before the court was far more detailed than that filed by this appellant at any stage. Mr Hare drew the court’s attention to [28] of TBO Investments where Lord Dyson said:

“If the sick note had stood alone, I do not consider that, even in the context of an application under rule 39.3(3), the judge could have been criticised for dismissing it.”

The present case, Mr Hare submits, is far closer to a stand-alone ‘sick note case’ and the judge cannot be criticised for dismissing the application.

The judge dismissed the appellant’s application as finding that although the appellant might have been unfit to work, he was not satisfied on the balance of probabilities that he was ‘physically incapable of getting to court’. The judge accepted that his condition may have deteriorated after the setting of the trial date but held that “on any view it was extremely late to be making an application of this sort in this manner”.

In reaching my conclusion I bear in mind that :

I have concluded that, notwithstanding those considerations and that the judge said at [25] that in reaching his conclusion he had had “regard to all the available evidence,” he nevertheless fell into error in that (other than the brief mention of the lateness of the application) his focus and analysis rested wholly on whether the appellant was physically capable of attending court on the day of the trial. In doing so the judge, in my judgment, failed to examine all the evidence relevant to the non-attendance of the appellant. In considering the totality of the evidence the following matters were relevant:

As the three factors in CPR r39.3(5) are cumulative, in order for the application to set aside the order of HHJ Carr to have succeeded, the applicant had not only to demonstrate good reason for not attending the trial, but also that he acted promptly (which is not in dispute) and that he had a reasonable prospect of success at trial.

In considering the appellant’s prospects of success, Jay J held that the appellant had, on the facts of the case, no claim in contract; a conclusion which must be right and is not challenged.

The judge, on the basis of the somewhat limited submissions he had received, was not prepared to find that the appellant did not have a reasonable prospect of success at trial and, having briefly considered two authorities, concluded that it is arguable that a duty of care arises in these sorts of circumstances.

By their Respondent’s Notice, the DVLA appeal against that conclusion and submit that, even if the judge had fallen into error and applied too rigorous a test in considering whether the appellant showed a good reason for not attending the trial, his application should nevertheless fail as there is no reasonable prospect of succeeding in a claim in negligence at trial.

In oral submissions Mr Hare initially said that the statutory limitation of the Post Office’s liability found in ss89-91 of the Postal Services Act 2000 provided a complete answer to the claim, although he somewhat tempered that submission subsequently.

S90 of the Postal Services Act 2000 provides:

“Exclusion of liability.

(1)

No proceedings in tort shall lie or, in Scotland, be competent against a universal service provider in respect of loss or damage suffered by any person in connection with the provision of a universal postal service because of—

(a)

anything done or omitted to be done in relation to any postal packet in the course of transmission by post, or

(b)

any omission to carry out arrangements for the collection of anything to be conveyed by post.

(2)

No officer, servant, employee, agent or sub-contractor of a universal service provider shall be subject, except at the suit or instance of the provider, to any civil liability for—

(a)

any loss or damage in the case of which liability of the provider is excluded by subsection (1), or

(b)

any loss of, or damage to, an inland packet to which section 91 applies.

(3)

No person engaged in or about the conveyance of postal packets and no officer, servant, employee, agent or sub-contractor of any such person shall be subject, except at the suit or instance of the universal service provider concerned, to any civil liability for—

(a)

any loss or damage in the case of which liability of the provider is excluded by subsection (1), or

(b)

any loss of, or damage to, an inland packet to which section 91 applies.”

Mr Hare submits that having once posted the passports to the appellant, the fact that it was the Post Office who lost the documents absolves them (the DVLA) from any responsibility. Any assumption of responsibility for the loss of the documents rests upon the Post Office as the operator and they have a general exclusion of liability as the universal provider, subject only to the modest compensation payable in limited circumstances under a schedule to the Act.

I can see the logic to that argument if the DVLA, having assumed responsibility for the documents and having invited the appellant to provide a special delivery envelope, had then posted the passports back to the appellant in the special delivery envelope he had provided. If the passports had thereafter been lost, the appellant would have been able to track the packet by virtue of the special delivery process. If the passports however were not thereafter traced, notwithstanding the tracking service, the appellant would undoubtedly have received only the limited compensation provided for under the Act and it is hard to see what, if any, residual claim he would have had against the DVLA.

In my judgment a similar argument cannot be successfully deployed in respect of the established facts namely that the DVLA failed to use the special delivery envelope. If one was looking at it in bailment terms (although this is not how the case is currently pleaded) it could be said that the DVLA was in breach of the terms of the bailment, having sent the passports back by first class post rather than by special delivery, a consequence of which was to leave the appellant without a means to track the envelope once it had failed to arrive at his address. It is not clear to me in those circumstances how it can possibly be argued that the DVLA can rely on the statutory immunity provided to the Post Office.

For my part I would not be prepared to allow the Respondent’s cross appeal and thereby overturn the judge’s conclusion that the appellant has a good arguable case in negligence.

The appellant’s appeal is therefore allowed and the respondent’s cross appeal dismissed.

The effect of our decision is that the appellant can now proceed to have his case considered on the merits. I would however sound a strong note of caution to him. On the information before the court I have no hesitation in saying that the quantum put forward by the appellant as his claim for consequential damages is wholly unrealistic. If the matter goes back to the County Court for trial, not only will there be further considerable delay in a case which has already been going on for ten years, but further costs will be incurred with the attendant risks of costs order being made. The time must surely have come to bring this unfortunate matter to an end and I would encourage the parties to seek to attend mediation as a route to achieving a settlement without further court proceedings.

I agree.

The appeal is allowed;

The cross-appeal is dismissed;

The Respondent shall pay the Appellant’s reasonable costs of the appeal at the litigant-in-person rate, to be assessed if not agreed;

The claim in negligence is remitted to the County Court, but is hereby stayed for four months in order for the Parties to engage in mediation.