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Adam Willoughby Successful in the Court of Appeal

Wed 1st Jul 2020

Success in the Court of Appeal:

The Court of Appeal has handed down judgment in the case of Fatima v (2) Family Channel Limited and (2) Riaz. Judgment can be found here. Adam Willoughby represented the successful appellant. The case considered circumstances in which a judgment can be set aside under Civil Procedure Rule 39.3 where a party does not attend trial and judgment is entered in their absence. In this case, District Judge Hickinbottom had set aside judgment entered in the Appellant’s absence but that decision was overturned on appeal before HHJ Gosnell. He considered that in the interests of judicial comity and consistency, District Judge Hickinbottom should have followed the decision of the trial judge and should have refused the application to set aside.

Lady Justice Carr giving the lead judgment held:

“…the hearing of an application under CPR Part 39.3(3) involves a separate exercise of discretion which is unfettered by any previous exercise of discretion on an adjournment application.

“There is no principle of consistency or judicial comity which requires the judge hearing the application under CPR Part 39.3(3) to follow the trial judge and the Judge was wrong to hold otherwise. It is open to the judge hearing the application under CPR Part 39.3(3) to reach a different decision on the same facts.”

The case adds to a line of authorities which deal with the relationship between CPR 39.3 applications and appeals of the decisions of trial judges to continue in the absence of a party. This case emphasises that applications under CPR 39.3 applications are to be considered by applying the test laid down in the rules, unfettered by a trial judge’s decision or the confines of an appeal of the same.

Adam was instructed by Stachiw Bashir Green Solicitors

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