The interplay between an unsuccessful application to adjourn a trial (CPR 3.1) and a subsequent application to set aside a judgment due to non-attendance (CPR 39.3(3)) (Fatima v Family Channel Ltd and another)

CA – Fatima v Family Channel Ltd and another [2020] EWCA Civ 824

This appeal raised an important point of principle, namely, the interplay between an unsuccessful application to adjourn a trial under CPR 3.1(2)(b) and a subsequent application to set aside a judgment entered against a non-attending party under CPR 39.3(3). The Court of Appeal made it clear that there is no principle of consistency or judicial comity which requires a judge dealing with an application pursuant to CPR 39.3(3) to follow the trial judge’s decision, even where nothing has subsequently changed in respect of the facts. In particular, an application to adjourn a trial and an application under CPR 39.3 are discrete applications involving different tests. An application pursuant to CPR 39.3(3) justifies a less draconian approach; 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 39.3(3) than it is in an application to adjourn.

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First Published by Lexis®PSL on 02/07/2020

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