In the recent case of Tinkler and another v Elliott  EWCA Civ 1289, the Court of Appeal considered whether a litigant in person acted promptly for the purposes of CPR 39.3(5) in making an application to set aside a judgment and order made in his absence.
The Court of Appeal provides a useful summary of the principles set out in CRP 39 that arise on an application under CPR 39.3(3) to set aside an order or judgment, most importantly, whether such an application is made promptly by the applicant. Where an application is made promptly pursuant to CPR39.3(5) then the court has a discretion to accede to such a request.
Where the court gives judgment or makes an order against a party who does not attend a hearing, that party may apply for the judgment or order to be set aside pursuant to CPR 39.3(3). However, where such an application is made, the court may grant the application only if the applicant acted promptly in accordance with CPR39.3(5)(a).
(3) Where a party does not attend (trial) and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.
CPR 39.3(5) states:-
(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant –
(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;
(b) had a good reason for not attending the trial; and
(c) has a reasonable prospect of success at the trial
Practice Directions 3C.4 applies where the court is considering making a General Civil Restrain Order “GCRO” and set out that a “GCRO” will restrain a party who has issued claims or made applications which are totally without merit from issuing any claim or making any application “without first obtaining the permission of a judge identified in the order”.
Facts of Tinkler and another v Elliott
Mr Elliott was employed by WA Developments International Ltd (WADI) to provide aviation consultancy services and as a pilot until his relationship with WADI came to an acrimonious end in March 2007. Acting as a litigant in person, Mr Elliott commenced proceedings against the chairman of WADI, Mr Tinkler. The proceedings settled and, as part of the compromise, Mr Elliott undertook not to make or repeat any damaging allegations against WADI and its associates. Litigation between the parties continued and the chairman of WADI commenced proceedings against Mr Elliott for damages and an injunction in the same terms as the compromise and the Trial was listed to start on 15 March 2010.
On 8 March 2010, Mr Elliott sent a letter to the court from his GP, confirming that he was not well enough to attend the trial. On 12 March 2010, the court listing officer informed Mr Elliott by e-mail that, in the absence of a formal application, the trial would remain listed for 15 March. Mr Elliott denied ever receiving this email.
The trial proceeded in Mr Elliott’s absence and the court granted a permanent injunction and made a GCRO against Mr Elliott on 15 March 2010, serving Mr Elliott with a copy of the Order on the same day. The Judge noted however that Mr Elliott could apply to set aside the judgment under CPR39.3(3).
In July 2011, Mr Elliott applied for an extension of time for permission to appeal against the 15 March 2010 Order and his application failed. On hearing the application in October 2011, Sir Richard Buxton observed that Mr Elliott could have applied to have the 15 March 2010 Order set aside pursuant to CPR 39.3(3).
On 8 December 2011, Mr Elliott, as the subject of the GCRO, issued an application for permission to apply to set aside the 15 March 2010 Order and permission was granted. In February 2012, Mrs Justice Sharp granted the application and set aside the 15 March 2010 Order, finding that Mr Elliott had satisfied the requirements in CPR 39.3(5). WADI and its Chairman appealed.
The appeal of WADI and its Chairman was allowed and the question before the Court of Appeal was whether Mrs Justice Sharp had been wrong to conclude that Mr Elliott had acted promptly in making his application to set aside the 15 March 2010 Order, despite the fact that there had been a delay of more than 18 months from notice of the judgment to applying to set it aside and whether Mr Elliott had satisfied the “promptness” requirement pursuant to CPR 39.3(5)(a).
Giving the lead judgment, Lord Justice Maurice Kay concluded that promptness is a mandatory requirement for the court to consider and that an applicant must act “with all reasonable celerity in the circumstances”. Only where an applicant satisfies the requirement of promptness does the court have a narrow discretion to set aside judgment.
He considered the following authorities:
- Regency Rolls Ltd v Carnall  EWCA Civ 379, where the court considered that a delay of around 30 days was too long a time delay to be regarded as “prompt”.
- The case of Bank of Scotland v Pereira and others  EWCA Civ 241 where the Court of Appeal looked at the relationship between an appeal and an application made pursuant to CPR 39.3. It was held that the existence of the remedy under CPR 39.3 did not affect a defendant’s right to appeal an order. It was also said that an appellate court should only “interfere if satisfied that the judge was wrong”.
- Standard Bank plc v Agrinvest International Inc  EWHC 1692 (Comm) which concerned an application to set aside a judgment entered in default pursuant to CPR 13.3 and in which it was held that “although promptness may not be the controlling factor under CPR 13.3, it is plainly a very important factor”. Unlike CPR 39.3, under CPR 13.3, promptness is a matter to which the court “must have regard”.
A question of “Promptness”
In his submissions, Mr Elliot asked the court to approach the issue of promptness with a “maximum of flexibility”. He suggested that he should have his case considered on the merits, regardless of the delay in his application. The court considered this approach to be flawed as discretion of the court only arises if all three requirements in CPR 39.3(5) are satisfied.
Mrs Justice Sharp had concluded that Mr Elliott’s mental health problems, coupled with the fact that he was a litigant in person and ignorant to the availability of an application to set aside, enabled him to establish promptness.
Although the Court of Appeal did not dispute Mrs Justice Sharp’s finding that Mr Elliott had suffered mental health problems during the period of the dispute, it could not accept that Mr Elliott was incapable of functioning as a litigant in person and emphasised the fact that he had been extremely litigious since the Order made on 15 March 2010. Even where a litigant in person has not availed himself of all the procedural options available to him, this did not mean that he was entitled to “extra indulgence”. Interestingly, the court of appeal felt that Mrs Justice Sharp had gone “too far in making allowances for a litigant in person”.
The judgment in Tinkler and another v Elliott serves as a useful reminder for a party seeking to set aside a judgment made in his absence that all three requirements under CPR 39.3(5) must be satisfied if he or she is to succeed; ie. a party must show that he acted promptly in making the application, that he had a good reason for not attending the trial, and that he had a prospect of success at trial.
With regard to the requirement of promptness, litigants in person who do not appreciate the procedural options available to them should not be treated with “excessive indulgence”.