Within the recent appeal of Mabrouk v Murray [2022] EWCA Civ 960, the three-limb test as contained within CPR 39.3(3) was considered once again and serves to be a timely reminder of the strict approach the court can take when a party attempts to turn back time.

The Law

Civil Procedure Rule 39.3(1) confirms that the court may proceed with a trial in the absence of a party and should the party who fails to attend the trial be the Defendant, his/her defence or counterclaim as filed may be struck out by the court in their absence.

All hope is not lost for an absent Defendant, however, as Civil Procedure Rule 39.3(3) allows for an application to be made by a party who failed to attend a trial. The application will seek an order whereby any judgment or order made in the party’s absence be set aside.

Civil Procedure Rule 39.3 confirms that a three-limb test must be satisfied by the absent party before the court may grant any application made. The three-limb test can be found within Civil Procedure Rule 39.3(5) and is confirmed as follows:

1. The absent party must have acted promptly when he/she found out that the court had exercised its power to strike out or to enter judgment or make an order against him/her;
2. The absent party must have had a good reason for not attending the trial; and
3. The absent party must have a reasonable prospect of success at the trial.

It was confirmed within a historic case known as Regency Rolls Ltd v Carnall [2000] EWCA Civ 379 that all three limbs of the test as mentioned above must be satisfied before the court is able to exercise their discretion and set aside any judgment/order previously made in a party’s absence. It was confirmed within such a case that the intention behind the three-limb test was to prevent a Defendant from seeking a re-trial after failing to attend the original trial.

Civil Procedure Rule 39.3 continues to confirm that any application made must be supported by evidence.

Previous cases considered

Applications made under Civil Procedure Rule 39.3(3) have been considered by Judges for several years. For example, within a case known as Lomax & Ors v Greenslade [2018] EWHC 2623 (Ch) an appeal was made by the Defendant in respect of a judgment made in her absence. The argument put forward by the Defendant was that the trial should have been adjourned as previously requested as a result of her ill health (to which evidence was provided in respect of). Within the appeal, in which Civil Procedure Rule 39.3(5) was considered, it was ruled that the Defendant did have a good reason for not attending trial but that an application could have been sooner and as such, was not made promptly. As such, the Defendant did not satisfy all three stages of the test and the judgment remained.

Within a case known as KD v Gaisford [2019] EWHC 3722 (QB) the test was further considered. It was clear within such a case that the application was made promptly, satisfying one part of the three-limb test. However, the court believed that the Defendant failed to show any good reason as to why he failed to attend the trial. The Judge referred to the Defendant’s lack of attempts to make practical and reasonable steps to attend the trial.

The above cases show just how strict the court will be when applying the three-limb test. Any application made will not be granted if a party does not satisfy all three parts of the test, even if the court believes the party had good reason not to attend or that he/she has a chance of succeeding at trial.

 Mabrouk v Murray [2022] EWCA Civ 960

On 17 April 1984, a demonstration took place by anti-Gaddafi demonstrators outside of the Libyan Embassy. WPC Yvonne Fletcher, and her colleague Mr Murray, were policing the demonstration as ordered. At around 10:20am, however, gun shots were fired from the Embassy towards the demonstrators and the police officers on duty. Unfortunately, one of the bullets struck WPC Yvonne Fletcher in the back and she sadly passed away in hospital later that day. During the journey to the hospital, Mr Murray made a promise to WPC Fletcher that he would find out who had shot her and why.

Thirty-four years later, Mr Murray bought legal proceedings against a Mr Mabrouk due to his involvement in the shootings that took place on 17 April 1984. Mr Mabrouk was at this point unable to enter the UK due to his suspected involvement in war crimes and crimes against humanity in Libya. Mr Mabrouk attempted to have the proceedings thrown out on the basis that he could not defend himself whilst outside of the UK; his attempts were unsuccessful and a trial was listed on 10 November 2021. Mr Mabrouk failed to attend the hearing, which resulted in judgment being obtained against him in his absence. Mr Mabrouk appealed the decision four months later.

Within the appeal, the three-limb test as set out in Civil Procedure Rule 39.3(5) was considered by the court. The Judge adjudicated as follows:

1. Mr Mabrouk had not acted promptly when considering the date in which he would have been aware of the judgment made and appears to have failed to disclose within his appeal as to when he was made aware of the judgment. Further comment was made in respect of Mr Mabrouk’s lack of explanation, and evidence, as to why there is such a substantial delay considering his awareness of the proceedings from the outset;
2. Mr Mabrouk failed to satisfy the court that he was genuinely unable to participate in the trial and as such, Mr Mabrouk has failed to provide and evidence a good reason as to why he failed to attend the trial. Further, the Judge referred to their belief that Mr Mabrouk’s failure to attend was deliberate in that he ignored the proceedings. The Judge also dismissed his assertion of being unable to attend the trial due to his removal from the UK in light of parties’ ability to attend trials remotely; and
3. Mr Mabrouk had failed to evidence any reasonable prospect of success in respect of the proceedings. Within such a finding, the Judge expressed his expectation of Mr Mabrouk having worked through the judgment given in order to explain in detail how the Judge’s finding(s) was wrong. Mr Mabrouk however continued in his failure to put forward a fully detailed defence, despite four years having passed since the commencement of the proceedings.

The recent appeal case as referred to above is a continuous reminder that the court will not turn back time and give a Defendant a second chance of a trial simply upon request. The Defendant must overcome each, and all, hurdles of the three-limb test as detailed in Civil Procedure Rule 39.3(5) should they wish to be successful when requesting that a judgment or order made in their absence be set aside. Further, Defendants should ensure to deal with each stage of the three-limb test adequately within their application and provide sufficient evidence in respect of each stage.

Written by : Danielle Armstrong, Solicitor

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