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Failure to attend trial “means more than turning up late”

Spencer: Inappropriate and premature to strike out claim

The High Court has set aside an order made by a recorder striking out a claim because the claimants were two hours late for a trial in Cornwall.

Mr Justice Martin Spencer criticised both Recorder Mitchell and the defendants for being “passive rather than proactive” in trying to find out what had happened to the claimants.

He said the fundamental reason for the late attendance was because of the “momentum towards settlement” and the negotiations that occurred the previous day until 10.40pm.

The two claimants, Martey Akita and Josephine Asiedu, set off from London for Truro County Court at 5am the following morning.

The judge said Ms Asiedu “had made more than one attempt to get in touch with the court but had difficulties getting through except for the one time when, at about nine-thirty, she had anticipated getting to court by eleven.”

He went on: “That was critical information for the recorder because he knew thereby that this was not a case of wilful non-attendance but a case of a party being late.”

Martin Spencer J said Ms Asiedu did not arrive for the two-day trial until close to midday, but there was no indication that Recorder Mitchell, knowing the difficulties there could be in getting through to the court, had told the defendants to phone the defendants.

“Effectively, as I understand the position, both the defendants and the recorder were reactive and passive rather than proactive in trying to find out what had happened to the appellants.”

The judge said it was “inappropriate and premature in those circumstances” for the recorder to use his power under CPR 39.3 to strike out the claim on the grounds of non-attendance.

Martin Spencer J said that, even if the claimants were delayed by a further two hours and had turned up at two o’clock, the case could have proceeded and been completed in time, without causing “serious inconvenience” to any of the parties.

The court heard in Akita and another v Bank of Ireland [2019] EWHC 1712 (QB) [1] that the claimants had a loan from the Bank of Ireland, secured on a property portfolio. Following the financial crisis in 2008, the claimants defaulted on the loan and the bank sold the properties, but there was still a shortfall.

The claimants argued that this residual debt was satisfied by an agreement between the parties. They sought a declaration from the court confirming this, a claim which was due for trial at Truro County Court on 23 August 2017.

Martin Spencer J said negotiations “gathered steam” the day before the trial, when the bank’s solicitor emailed the claimants a draft settlement agreement.

However, the parties had not agreed some “residual points” by just after 6pm, when the bank’s solicitor emailed the claimants’ barrister.

Martin Spencer J said emails exchanged during the day showed the parties were “very close to settlement”.

Just before 7pm, the claimants’ barrister emailed the court explaining that the parties had been negotiating and “had almost reached agreement”, adding that it was hoped that agreement could be reached that evening or the following day.

The final email was sent by the bank’s solicitor at 10.40pm, stating that “there appeared to be two key points that still needed to be resolved”.

Martin Spencer J concluded: “The recorder should have taken steps to ascertain, in view of the message that had already been received, that this was indeed a case of non-attendance as opposed to late attendance, and had he done so and ascertained that the appellant was only half-an-hour away, I have no doubt that he would have afforded that extra time.”

The judge allowed the claimants’ appeal and set aside Recorder Mitchell’s order.