Key Facts
- •Claimants are executors of Pamela James' will (died 19 Nov 2019), Defendant is her son.
- •Will leaves most of the £390,000 estate to Claimant 1.
- •Defendant challenged the will claiming lack of testamentary capacity and undue influence.
- •Defendant failed to attend the trial on 14 Sept 2022 due to claiming to be in hospital awaiting a liver transplant.
- •The trial judge (HHJ Mithani KC) found for the Claimants.
- •Defendant's application to set aside the 14 Sept 2022 order was struck out on 14 Nov 2022 for non-attendance.
- •This application concerns the Defendant's attempt to set aside the 14 Nov 2022 order striking out his previous application.
- •The Defendant claimed he had not received notice of the 14 Nov hearing and was unwell.
- •The Defendant provided limited medical evidence.
Legal Principles
Test for setting aside an order made in a party's absence (CPR 39.3(5)): prompt application, good reason for absence, reasonable prospect of success at trial.
CPR Part 39.3(5)
On applications under CPR 39.3(5), if all three conditions are met, it is exceptional to refuse the application.
Bank of Scotland Plc v Pereira [2011] EWCA Civ 241
The test for 'reasonable prospect of success' is akin to that for summary judgment; a 'realistic' as opposed to a 'fanciful' prospect.
CPR Part 39.3(5)
Applications to set aside orders must also satisfy the test for relief from sanction under CPR Part 3.9.
Gentry v Miller [2016] EWCA 141
Court should be less rigorous when considering promptness and good reason for non-attendance under CPR 39.3(5)
Bank of Scotland Plc v Pereira [2011] EWCA Civ 241
Relief from sanctions under Denton v White [2014] EWCA Civ 906.
Denton v White [2014] EWCA Civ 906
Outcomes
Defendant's application to set aside the 14 November 2022 order was dismissed.
While the judge accepted the Defendant had a good reason for not attending the 14 November hearing (recent liver transplant and medication), he found the Defendant had no reasonable prospect of success at trial. The Defendant had failed to comply with court directions and had not presented admissible evidence to support his claims.