In Bank of Scotland v Pereira and others, Pereira failed to attend the final hearing of possession proceedings and an order for possession and assessment of damages was ordered against her. Almost two years later Pereira applied to set the order aside. The matter found its way to the Court of Appeal who provided some guidelines as to when the court can grant an application to set aside a judgment under Part 39.3 of the Civil Procedure Rules (CPR). Part 39.3(5) provides that an application can only be granted where all three of the following are met:

  • The applicant acted promptly on discovering that an order or judgment had been entered against him
  • There had been good reason for not attending the trial
  • The applicant has reasonable prospects of success.

The Court of Appeal held:

  • Where a defendant fails to attend trial and wishes to have the judgment or order set aside, (rather than appealed) the application should be made pursuant to Part 39.3 so long as the threefold test (as above) can be satisfied.
  • If the threefold test can't be met, an application should be made under Part 52 CPR to appeal the underlying judgment.
  • If the application fails under Part 39.3 on the basis that the application was not made promptly or there was no good reason for not attending the trial, that will not preclude an application under Part 52. However, the appellate court on a Part 52 application should take a great deal of persuading before departing from a conclusion expressed by the court hearing the Part 39.3 application to set aside.
  • If the Part 39.3 application fails on the basis there are no reasonable prospects of success, the applicant will not normally be entitled to raise the same arguments again in an application under Part 52.
  • If the Part 39.3 application fails, the applicant is likely to be in severe difficulty in arguing successfully that she can rely on evidence which was not before the judge at trial.
  • If no Part 39.3 application is made but a Part 52 application is made, similar considerations arise as to the admissibility of evidence not available at the trial.  

Things to consider

These guidelines show how difficult it will be to persuade a court to exercise its broader discretion upon an appeal under Part 52 where the applicant failed to attend trial.