Failure to attend the trial

When a litigant in person fails to attend a trial for medical reasons, will he/she be able to fall back on CPR r 39.3(2)?

The relevant principles are set out in Emojevbe v Secretary of State for Transport[2017] EWCA Civ 934 (link to BAILII here). In Emojevbe (which began in the Central London County Court) the appellant had applied for an adjournment two days before trial, citing an injured knee. That application was refused; the appellant subsequently failed to attend trial and summary judgment was granted. He applied to set this aside under CPR r 39.3(2)

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

It is now well-established that CPR r 39.3 and Part 52 (Appeals) overlap: even if an application under r 39.3 fails, that does not prevent an applicant seeking permission to appeal the order,  and indeed there is some judicial guidance suggesting that a person in that position should do both: see Bank of Scotland plc v Pereira and others (“Pereira”) [2011] EWCA Civ 241 per Lord Neuberger at [24].

In Emojevbe, the trial judge focussed on whether the appellant had a good reason for not attending the trial. He took the view that if the evidence showed that he appellant was “simply unable physically to attend court”, then that would amount to good reason. But Dr Emojevbe had only supplied a “fit note” indicating that he was unfit for work. That, he thought, did not amount to “good reason”.

However, the Court of Appeal took the view that the trial judge had fallen into error, because (para 32):

“. . . 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:

i) There was no history of the appellant either failing to attend court or seeking adjournments;

ii) The illness was genuine; the further medical evidence which had become available before the judge, and which had not been before HHJ Carr, showed that later in the year with which we are concerned surgery to the knee became necessary and the appellant was signed off work for a number of months;

iii) The appellant was in pain. Whilst the emphasis was undoubtedly on the issue of mobility in terms of the appellant’s ability physically to attend court, no consideration was given as to whether the appellant would be put to an unfair disadvantage and be less able to put forward his case on his own behalf whilst in pain from his injured knee. The extent to which his medical condition might impede his ability to conduct the litigation in person is a factual matter which should be taken into account;

iv) The appellant was the claimant and the reality was that if the application under CPR 39.3(3) failed then at no stage would the merits of the case have been considered by a court;

v) The judge had found the third limb, ‘reasonable prospect of success at trial’ to have been satisfied.

The appeal was therefore allowed, notwithstanding the usual disclaimers that appellate courts should be slow to interfere with a decision of a lower court on such questions; that evidence offered in support of an application to adjourn should be scrutinised; that a pro-forma fit note, without more, may be insufficient to found either an adjournment application or a r 39.3 application; and that the fact that someone is a litigant in person is not in itself a reason for applying a test other than that which applies to a represented litigant (all from para 31 of the decision in Emovjevbe).

The moral of the tale is that when dealing with adjournment applications on medical grounds (or subsequent applications under r 39.3) it is worth taking a broad view, and not merely focussing on the medical evidence. That having been said, the medical evidence is likely to be fundamental; and a “fit note” by itself, as the Court in Emovjebe noted, may well be insufficient.

Author: Ezra Macdonald

I'm a barrister practising from Pump Court Chambers in London (although we have annexes in Wiltshire and Hampshire and I work throughout England & Wales). I mainly do a combination of employment, commercial, and property law (both residential and commercial). I also do some personal injury work, which these days consists mostly of fast track trials. I have a strong-to-moderate academic interest in the law, and I'm always happy to be contacted for discussion or advice.

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