Fatima v Family Channel Ltd & Anor

This appeal raises an important point of principle, namely the interplay between an unsuccessful application to adjourn a trial under CPR Part 3.1(2)(b) and a subsequent application under CPR Part 39.3 to set aside a judgment against a nonattending party. CPR Part 39.3 provides materially as follows:

An application under paragraph…(3) must be supported by evidence.

Where an application is made under paragraph…(3) by a party who failed to attend trial, the court may grant the application only if the applicant-

acted promptly when he found out that the court had exercised the power to strike out or to enter judgment or make an order against him;

had a good reason for not attending the trial; and (c) has a reasonable prospect of success at the trial.”

It is a second appeal by the Appellant (“Ms Fatima”) against the order HHJ Gosnell (“the Judge”) of 4 October 2019. By that order the Judge allowed the appeal of the Respondents (“FCL”, “Mr Riaz”) against the order of DJ Hickinbottom (“the

In January 2016 FCL commenced proceedings against Ms Fatima for the repayment of some £28,000 and/or damages and interest for allegedly unauthorised withdrawals by Ms Fatima from FCL’s bank account whilst she was engaged as an administrative assistant by FCL in 2013 and 2014. Ms Fatima denied the claim and countered with a Part 20 Claim against FCL and Mr Riaz, the sole director of and a shareholder in FCL, alleging that Mr Riaz had raped and falsely imprisoned her, for which FCL was said to be vicariously liable.

The proceedings were stayed between December 2016 and May 2018 whilst police enquiries into the allegation of rape were ongoing. The matter was then listed for a three-day trial commencing 16 January 2019 and came before the Recorder.

Ms Fatima did not attend court that day. Rather, counsel on her behalf applied for an adjournment of the trial under CPR Part 3.1(2)(b), based on Ms Fatima’s illness. Reliance was placed on two GP letters. First, there was a letter dated 27 December 2018 from Dr Ishfaq which stated:

A further letter dated 15 January 2019 from a different GP, Dr Clarke, stated:

The Recorder considered the authorities relating to adjournments for medical reasons, including Decker v Hopcroft [2016] EWCH 2962 at [24] which quotes from the well-known decision of Norris J in Levy v Ellis-Carr [2012] EWHC 63

He also considered Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101; [2018] 1 Costs LR 103 (“Solanki”). He concluded that the medical evidence fell some way short of excusing Ms Fatima’s attendance. Neither doctor stated that she was unfit to attend trial. She was clearly still able to give instructions to her solicitors and counsel. He expressed certain concerns:

The Recorder referred to the serious nature of the allegations on both sides and stated that the action had gone on for “far too long”. He ruled that he would start the trial on the following day after making arrangements for adjustments to be made to assist Ms Fatima in giving evidence.

Ms Fatima did not attend the next day, 17 January 2019, nor did anyone on her behalf. By this stage there was a letter of 16 January 2019 from Bradford Crisis and Sexual Abuse Service available. The letter stated that the Service had been working with Ms Fatima since 2016. The Recorder indicated that at face value this would mean that the trial would never happen. There was also a text message sent by Ms Fatima’s husband to her solicitors indicating that Ms Fatima had been admitted to the Accident and Emergency Department of Bradford Royal Infirmary that day but with no further information. Enquiries made by court staff revealed that Ms Fatima was in hospital with chest pains, vomiting, headaches and hysteria.

The Recorder reconsidered his earlier ruling in the light of this additional information. His assessment of Ms Fatima’s conduct overall was as follows:

He ruled that the medical evidence was insufficient to justify an adjournment. He took into account the interests of both sides. Whilst he bore Ms Fatima’s interests in mind, FCL was entitled to resolution of its claim. It was four years since the events in question. The sooner the case was resolved, the better for all parties.

The Recorder thus decided to proceed in the absence of Ms Fatima. He struck out her defence and dismissed her Part 20 claims. He entered judgment in favour of FCL in the sum of £28,358, together with interest and costs.

On 29 January 2019 Ms Fatima applied to set the order aside, as was her right under CPR Part 39.3. That application came before the District Judge on 13 March 2019 and was successful. The judgment and orders of the Recorder were set aside and directions given for the matter to proceed to trial.

In accordance with CPR 39.3(4), the application was supported by evidence in the form of a witness statement dated 31 January 2019 from Ms Fatima. She stated, amongst other things:

The statement also addressed the promptness of the application and the prospects of success of her defence and Part 20 claim.

In his judgment, the District Judge recorded the history of the matter and identified the appropriate test under CPR Part 39.3. He concluded that the promptness and merits requirements in CPR Part 39.3(5) were made out. The real question was whether Ms Fatima had a good reason for not attending trial. He said:

He set out what those precautions would be (including a separate waiting room and screens), and said that Ms Fatima’s indication on 16 January 2019 that she would not attend would not necessarily hold for the next day in the light of the new assurances. He went on:

The District Judge also referred to the GP’s letter of 15 January 2019 in which the GP advised Ms Fatima not to appear in court the next day. He concluded:

The District Judge considered that the application was made out and that the defence and Part 20 claim should be re-instated. He re-listed the matter for trial at the end of May 2019, making directions for special arrangements for Ms Fatima.

FCL and Mr Riaz appealed the District Judge’s decision. That appeal came before the Judge on 4 October and succeeded. The District Judge’s orders were set aside.

In his judgment, having rehearsed the history of the matter and the parties’ submissions, the Judge turned to his analysis. At [18] he commented that CPR Part 39.3:

At [20] he held that the exercise for him on this appeal under CPR Part 52.21 was a binary one: either the District Judge was right or he was wrong. He was satisfied that the District Judge had had jurisdiction.

He asked himself rhetorically what would happen if the facts before the “second” judge were identical to the facts before the “first” judge. At [26] he said:

At [27] the Judge repeated that, if the material was the same, the District Judge should have followed the Recorder’s decision “for reasons of consistency and judicial comity”. Thus the Judge stated that the District Judge should therefore have followed the decision of the Recorder. At [28] he commented that it struck him that it was “a little like an application to vary another judge’s decision”. He gave the example of a decision to vary a previous judge’s decision to refuse expert evidence for which a change of circumstances would be needed if the application were to succeed. At [29] he went on:

The Judge stated that he would not have granted the appeal purely because the District Judge failed to adjourn to obtain the transcripts of the Recorder’s judgments but he bore in mind that he now had the transcripts. The only new evidence available was Ms Fatima’s statement. Her statement basically gave no more than the information already before the Recorder. Its implication is that she would like to attend a trial, and he accepted that. But it did not say in terms that she had any intention in attending court on 17 January 2019. The Judge discounted the value of any of the other additional material, concluding that “[the District Judge] had no additional material on which to make his decision than [the Recorder] did”. If the District Judge had had the transcripts, he would not have made the decision that he did.

In the final substantive paragraph of his judgment, the Judge summarised his position thus:

On behalf of Ms Fatima, Mr Willoughby submits that the Judge was wrong to hold that, absent a change of circumstance or new material, the duty of the judge hearing the application to set aside is to follow the decision of the trial judge. The Judge should have considered whether the District Judge’s decision was wrong under CPR Part 39.3(5). Instead, he treated the appeal effectively as an appeal against the Recorder’s decision. Mr Willoughby emphasises that he does not in fact in any way criticise the Recorder’s decision not to adjourn the trial, nor does he need to.

The central submission for Ms Fatima is that CPR Part 39.3 sets out a specific and independent mechanism for a party who was absent at trial and against whom a judgment is entered to apply to set it aside. There are clear distinctions between an appellate mechanism and an application under CPR Part 39.3(3). It is wrong to suggest, as FCL and Mr Riaz do, that the District Judge was in some way bound by a finding of the Recorder to the effect that there was no good reason for Ms Fatima’s non-attendance at trial. Equally, there is no requirement for a material change of circumstance in order for an application under CPR Part 39.3(3) to succeed.

It is also submitted that the Judge was also wrong to approach the application to set aside on the basis that the overriding test was “fairness and the overriding objective”. Too much weight is said to have been given to the overriding objective. In addition, it is said that the Judge failed to consider properly the additional material that was before the District Judge (and which had not been before the Recorder), namely the witness statement from Ms Fatima dated 31 January 2019 explaining the reason for her absence on 17 January 2019 in particular and her hospital attendance record.

Mr Roberts for FCL and Mr Riaz submits that the Recorder was entitled to rule in the way that he did. Implicit in his decision was the finding that Ms Fatima had no good reason for failing to attend the trial. It was therefore wrong of the District Judge to overrule the Recorder’s findings. Not only were they decisions of a higher court, there was no legal or factual basis for doing so. The District Judge did not have transcripts of the Recorder’s judgments and should have adjourned the hearing in order to obtain them. Had he seen the transcripts, the District Judge would have understood that the Recorder “in effect” found that there was no good reason for Ms Fatima’s failure to attend trial. There was no additional evidence of any substance before the District Judge. Ms Fatima’s witness statement of 31 January 2019 added nothing to the sum of what the Recorder had known, namely that Ms Fatima was in hospital with chest pains. The District Judge was bound by the factual findings of the Recorder in respect of which there was no appeal. Mr Roberts makes it clear, as he did to the District Judge, that FCL and Mr Riaz do not for a moment believe that Ms Fatima ever intended to attend trial or that she was ill: he submits, for example, that there is no proven physical cause for her chest pains on 17 January 2019.

In the alternative, it is submitted that if it was open to the District Judge to consider whether or not there was a good reason, he was wrong to find that there was and exercise his discretion to set aside the Recorder’s judgment and orders. The Judge was correct to rule that, in the absence of any change of circumstance, the application under CPR Part 39.3 should be dismissed. This was the appropriate result on an application of the overriding objective and in accordance with the principle of judicial comity and finality.

Fundamentally, Mr Roberts submits that the Judge was correct to hold, on grounds of judicial comity and under the overriding objective, that the interface between applications to adjourn under CPR Part 3.1(2)(b) and to set aside under CPR Part 39.3 would not operate satisfactorily if the application to set aside could succeed in the absence of any new material or change of circumstance.

On this second appeal, the question is whether or not the intermediate court, here the Judge, was entitled to interfere with the decision of the first instance judge, here the District Judge.

The general approach to be adopted in relation to applications under CPR Part 39.3(3) was confirmed in Bank of Scotland v Pereira[2011] EWCA Civ 241; [2011] 1 WLR 2391 (“Pereira”). There Lord Neuberger MR stated:

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. It is a fundamental principle of any civilised legal system, enshrined in the common law and in article 6 of the Convention for the protection of human rights and fundamental freedoms that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representatives are present and are heard. If the case is disposed of in the absence of a party, and the party (i) has not attended for good reasons, (ii) has an arguable case on the merits, and (iii) has applied to set aside promptly, it would require very unusual circumstances indeed before the court would not set aside the order.

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 factsensitive, 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 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.

An appeal against a judge’s decision under CPR 39.3 to refuse (or indeed to allow) an application to set aside a

At [37] Lord Neuberger MR went on:

The courts have rightly shied away from seeking to define what is and is not a “good reason” (see for example Brazil v Brazil [2002] EWCA Civ 1135; [2003] CP Rep 7 at [12]). The court has to consider each case in light of all the relevant factors for non-attendance and, looking at the matter in the round, determine whether the reason is sufficient for the court to exercise its discretion in favour of

In TBO Investments Ltdv Mohun Smith and another [2016] EWCA Civ 403; [2016] 1 WLR 2919 (“TBO Investments”) at [26],Lord Dyson MR had the opportunity to address head on the question of whether there was any material distinction between an application under CPR Part 39.3 and an application for an adjournment of a trial. He considered the Pereira guidance (and his earlier judgment in Estate Acquisition) on the one hand, and the authorities dealing with the sufficiency of medical evidence required to justify an adjournment (Levy at [36] (set out above) as approved by this court in Forrester Ketley v Brent [2012] EWCA 324) on the other. He stated (at [24]) that, in making a decision on an application under CPR Part 39.3, the judge must have regard to the guidance given in Pereira and Estate Acquisition to seek to give effect to the overriding objective of dealing with cases “justly” and to comply with Article 6. He also emphasised (at [25]) that nothing that he was saying within the judgment should be interpreted as casting doubt on the guidance given in Levy. 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.

However, at [26] and [29] he went on as follows:

In a concurring judgment Macur LJ stated (at [39]):

This court expressly approved of and adopted this approach in in Emojevbe v Secretary of State for Transport[2017] EWCA Civ 934 (“Emojevbe”) at [21(ii)]).

In Gentry v Miller and another [2016] EWCA Civ 141; [2016] 1 WLR 2696

As was stated in Siamak Balenagni v Mostafa Sharifpoor [2020] EWHC 1571 (QB) at [39], the remaining discretion, after satisfaction of the three questions in CPR Part 39.3(5), is sufficient to incorporate the Denton principles arising under CPR Part 3.9.

From the above, the following relevant conclusions can be drawn.

First, is clear that an application under CPR Part 39.3(3) is not an appeal of any sort (or, for that matter, an application to vary the previous decision not to adjourn and/or proceed in the absence of a party). It can be pursued instead of, or in appropriate circumstances alongside, an appeal: see Pereira at [26] and [37] (set out above).

Secondly, CPR Part 39.3(3) to (5) provide for a specific procedural remedy with its own self-contained code of applicable principles, albeit subject, on the question of ultimate discretion, to a consideration of CPR 3.9 (which reflects the overriding objective) and the Denton principles.

Thirdly, there is a material distinction between an application for adjournment of a trial and an application to set aside a judgment under CPR39.3(3), the latter justifying a less draconian approach: see TBO Investments at [26] (set out above) and followed in Emojevbe at [21(ii)]. The approach to the question of whether or not there is a good reason for non-attendance is different (and more generous to the applicant) under CPR Part 39.3(3)) than it is on an application to adjourn.

For these reasons, the hearing of an application under CPR Part 39.3(3) involves a separate exercise of discretion which is unfettered by any previous exercise of discretion on an adjournment application.

Finally, an appellate court will be slow to overturn a judge’s decision under CPR

It follows from the above that the Judge’s reasoning was flawed. There is no principle of consistency or judicial comity which requires the judge hearing the application under CPR Part 39.3(3) to follow the trial judge and the Judge was wrong to hold otherwise (as he did at [26] and [27]). It is open to the judge hearing the application under CPR Part 39.3(3) to reach a different decision on the same facts.

I doubt in fact that the Judge would have taken the approach that he did, had he been referred to the relevant authorities of TBO Investments and Emojevbe in particular. Whilst the Recorder considered the judgment in Solanki (which addresses applications under CPR 39.3 as well as applications to adjourn for medical reasons and at [38] cites extensively from TBO Investments), the Judge does not appear to have done so.

There is no proper analogy to be drawn with case management decisions on expert evidence requiring a change of circumstances, as the Judge did at [28] and [29]. The change of circumstances rule is based on the principle identified in Chanel Ltd v FW Woolworth & Co Ltd [1981] 1 WLR 485that a party must bring forward in argument all points reasonably available to him at the first opportunity; and that to allow him to take them serially in subsequent applications would permit abuse and obstruct the efficacy of the judicial process by undermining the necessary finality of unappealed decisions. There is no analogy with the present case. For similar reasons there is nothing in the submission for FCL and Mr Riaz that the District Judge was bound by a finding of fact by the Recorder that the Appellant did not intend to attend on 17 January 2019. There was no need for the District Judge to adjourn the application before him in order to obtain transcripts of the Recorder’s rulings. It was for the District Judge to draw his own conclusions from the evidence before him. He was entitled to conclude that Ms Fatima’s stance on the previous day would not necessarily hold for the next day because she might have taken account of the protective measures which the Recorder had indicated that he would put in place.

This approach in no way offends the principle of finality. Putting to one side the fact that the evidence before the District Judge was much fuller than that before the Recorder (which consisted essentially of a bare text message indicating that Ms Fatima was in hospital), an application to adjourn a trial and an application under CPR Part 39.3 are different and discrete applications involving, as set out above, different tests.

Since the Judge was conducting an appeal by way of review under CPR Part 51.21 and the decision under appeal was the exercise of a discretion, he should not have interfered with its exercise in the absence of error of law or it being outside the wide ambit permissible. He erred in his approach at [20] that it was a binary decision whether the District Judge was right or wrong.

There was no error of law by the District Judge and the exercise of his discretion was well within the range of decisions properly open to him. It was conceded before him both that Ms Fatima had made the application promptly and had reasonable prospects of success at trial. The only issue was whether or not she had a good reason for not attending the trial and, if she did, whether the Recorder’s judgment and orders should be set aside. It was fully open to the District Judge to conclude that Ms Fatima had had a good reason for not attending for the reasons that he gave and to exercise his discretion to set aside the Recorder’s judgment and orders. It is clear (from [13]) of his judgment that he took into account Ms Fatima’s witness statement in reaching his conclusion that there had been a good reason for her non-attendance at trial. The Judge’s observation (at [32]) that it was “disappointing” that Ms Fatima had not stated in terms that she had any intention in attending court on 17 January 2019 was not well-made. The witness statement, fairly read, made it clear that “the reason for [her] non-attendance” was her medical condition. It stated in terms that she did not attend court on 18 January 2019 because she “was not well enough to do so after being hospitalised”. As already indicated, the witness statement on any view provided a much fuller picture to the District Judge than that presented before the Recorder. Despite the attack by FCL and Mr Riaz on Ms Fatima’s credibility, certainly in the absence of any application to cross-examine or direct evidence to undermine her position, the District Judge was entitled to reject that attack and approach the application as he did, on the basis that Ms Fatima was genuinely affected and attended hospital in good faith for treatment.

I note that on the question of ultimate discretion, the District Judge does not appear expressly to have considered the three stages identified in Denton. However, no ground of appeal in this regard was raised either before the Judge or this court. In any event, consistent with [25] of Pereira (Footnote: ¹), in circumstances where the three conditions in CPR Part 39.3(5) are satisfied, it will be a very unusual case where a consideration of the Denton principles will lead to anything other than a settingaside.

For these reasons, I would allow the appeal and restore the District Judge’s decision.

I agree.

I also agree.