Ru Tan v Mohamad Yasser Idlbi & Anor
[2023] EWHC 2840 (KB)
Yan Deng & Anor v Meng Zhang & Anor
20 September 2024
[2024] EWHC 2392 (KB)
High Court
A lawyer missed a court hearing because he didn't read an email. The judge said that's not a good enough excuse, especially since the lawyer had missed other deadlines too. The judge refused to overturn the decision made at the missed hearing and made the lawyer pay the costs.
Key Facts
- •The First Respondent (Claimant in the underlying claim) sought to set aside an order made by Saini J, which allowed the Appellants' appeal against Master Yoxall's order relating to the First Respondent's costs budget.
- •The First Respondent claimed to be unaware of the appeal hearing.
- •The underlying claim concerned data protection rights, breach of confidence, misuse of private information, and malicious falsehood.
- •The Appellants appealed Master Yoxall's decision to permit the First Respondent to rely on a late-filed costs budget and to dispense with costs budgeting.
- •The First Respondent did not file a Respondent's Notice or attend the appeal hearing.
- •The First Respondent's solicitor, Mr. Bahia, claimed not to have received notice of the appeal hearing, a claim later refuted by evidence showing an email notification had been sent to his email address.
- •The First Respondent made several applications to re-list the hearing to set aside Saini J's order, all of which were dismissed.
- •The First Respondent failed to comply with various court orders regarding deadlines for evidence submission and Skeleton Arguments.
- •A late witness statement from Mr. Bahia (Bahia 2) was submitted and the court considered its admissibility.
Legal Principles
Setting aside orders obtained in a party's absence.
CPR 23.11(2), CPR 39.3(2), (3), CPR 3.1(2)(m)
CPR 23.11(2) discretion to re-list an application is to be exercised sparingly, having regard to the overriding objective; merits are an important factor.
Yeganeh v Reese [2015] EWHC 2032 (Ch), MA Lloyd & Sons Ltd v PPC International Ltd [2014] 2 Costs LR 256
To set aside an order under CPR 39.3(5), the applicant must act promptly, have a good reason for non-attendance, and have a reasonable prospect of success.
Bank of Scotland v Pereira [2011] EWCA Civ 241
Denton test for relief from sanctions: assess seriousness of breach, reason for default, and all circumstances to achieve justice.
Denton & Ors v T H White Ltd & Ors [2014] EWCA Civ 906
Overwork alone is rarely a good reason for non-compliance with court orders.
Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537
Outcomes
The application to set aside Saini J's order was dismissed.
The First Respondent failed to demonstrate a good reason for non-attendance at the appeal hearing; his non-compliance with court orders was significant and not justified by overwork; he had little prospect of success on the merits of the appeal; and the application exceeded appropriate allocation of court resources.
The First Respondent was granted permission to rely on Bahia 2.
While the late service of Bahia 2 was a serious breach, admitting the first part narrowed the issues and the second part, while potentially outside permission, did not unduly prejudice the Appellants and was relevant to the merits.
The First Respondent was ordered to pay the Appellants' costs.
Following the general rule in CPR 44.2(2)(a) that the unsuccessful party pays the costs.