Failure to attend trial does not mean failure to attend on time

The High Court has drawn a distinction between non-attendance at trial and late attendance at trial.

In Akita & Another v The Governor and Company of the Bank of Ireland [2019] EWHC 1712, Mr Justice Martin Spencer was considering an appeal from Recorder Mitchell’s decision dismissing an application made by the Claimants under CPR 39.3.

The Claimants had set off from London for Truro County Court in the early hours on the morning of the trial. They hit traffic en route and within Truro itself before reaching court, ultimately arriving roughly 2 hours after the listed time, for what was meant to be a 2-day trial. The Recorder had already struck out the claim about half an hour before their and their counsel’s arrival.

In the decision, Spencer J considered that the wording of CPR 39.3 countenanced a scenario where a party did not attend at court at all, whether late or otherwise. He reasoned that turning-up 5 minutes after the listed time could not sensibly be regarded as a failure to attend. Instead, the test was that the cut-off time would be decided by the trial judge, once they had chosen not to wait any further. This was a fact-sensitive decision, and depended to a degree upon whether the party had taken steps to inform the court of their whereabouts. In this case, one of the Claimants had called ahead to the court to advise of their running late, albeit with an overly-optimistic estimated time of arrival.

The two pertinent factors within the Judge’s mind in arriving at his decision were that (1) the trial timetable would not have been jeopardised due to the late arrival and (2) the Defendant’s representatives had been ‘reactive and passive’ rather than proactive in ascertaining the whereabouts of the other side.

The Judge contrasted this with the common situation involving a long series of cases listed all morning, and a party arriving for a 10am hearing at 10:25am, only 5 minutes before the next hearing was due to be taken in. He considered that it was reasonable for a Judge in those circumstances to conclude that the party had failed to attend the hearing.

The High Court has therefore distinguished between a situation where a party arrives late but during a timeframe in which the hearing would still be effective, and a situation where a party either does not attend at all, or arrives so late that the hearing cannot meaningfully go ahead.

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