Yan Deng & Anor v Meng Zhang & Anor
[2024] EWHC 2392 (KB)
Junior Sobowale v Lendinvest Capital SARL
18 July 2024
[2024] EWHC 1829 (Ch)
High Court
A man couldn't attend court due to a family emergency and asked to give evidence remotely. The judge said no, and the man lost the case. He appealed, but the higher court agreed with the judge because he didn't provide enough proof of the emergency or make it easy to give evidence remotely. His other request to be excused for filing his evidence late was also denied.
Key Facts
- •Mr. Junior Sobowale appealed an order dismissing his applications for remote evidence and relief from sanctions, and granting judgment to Lendinvest Capital S.A.R.L. for over £2 million.
- •The claim was based on Mr. Sobowale's personal guarantee of a bridging loan with a shortfall after the sale of the security.
- •Mr. Sobowale's applications were made just before trial, citing his urgent travel to Nigeria due to his mother's illness.
- •The Deputy Master dismissed the applications, and judgment was granted in favor of Lendinvest in Mr. Sobowale's absence.
- •Mr. Sobowale appealed on grounds of unfair trial, denial of his human rights, inconsistent treatment with the claimant, and procedural errors.
- •The appeal court considered whether the refusal to allow remote attendance was fair, referencing principles of adjournment and case management.
Legal Principles
CPR 39.3(5): Test for setting aside judgment due to non-attendance at trial (prompt action, good reason for non-attendance, reasonable prospect of success).
CPR 39.3(5)
Denton v TH White Limited [2014] EWCA Civ 906: Three-stage test for relief from sanctions (seriousness of breach, reasons for the breach, all the circumstances of the case).
Denton v TH White Limited [2014] EWCA Civ 906
Bilta (UK) Ltd (in liquidation) v Tradition Financial Services Ltd [2021] EWCA Civ 221: Guiding principle for adjournment applications is fairness, considering the illness of a party or key witness.
Bilta (UK) Ltd [2021] EWCA Civ 221
Pereira [2011] EWCA Civ 241: Guidelines for appeals where a party was absent or unrepresented at trial. CPR 39.3 typically applies unless unusual facts exist.
Bank of Scotland v. Pereira [2011] EWCA Civ 241
Article 6 of the European Convention on Human Rights: Right to a fair trial.
Article 6 of the European Convention on Human Rights
CPR 3.1(2)(b): Court's power to hold hearings and receive evidence remotely.
CPR 3.1(2)(b)
Outcomes
Appeal dismissed on all grounds.
The court found the Deputy Master's decision to refuse remote attendance fair, despite acknowledging procedural shortcomings. Mr. Sobowale failed to meet the requirements for a retrial under CPR 39.3(5), particularly due to insufficient evidence supporting his reasons for non-attendance and the lack of a viable defence.
Remote Application dismissed.
Insufficient evidence of Mr. Sobowale's mother's illness, lack of proactive steps to enable remote participation, and the struck-out defence.
Sanctions Application dismissed.
Witness statement was significantly late, even considering potential confusion over extensions. The Deputy Master’s decision was deemed within his discretion.