HELP - I’M TOO ILL TO ATTEND TRIAL!

Understanding the Implications of a party’s absence due to sickness

*If this article applies to you, contact us urgently for advice at info@adambenedict.co.uk*

Written by Xean Chew
Approved by Adam Creasey

Introduction

If a party to a claim has been unable to attend a trial due to illness, the court may strike out the claim or defence and/or counterclaim, as the case may be. In those circumstances, the court may also award judgment in favour of the opposing party. This means that the party against whom the judgment is made will need to apply to court to have that judgment set aside.

This article sets out the court rules that govern this scenario, and the tests that the court will apply.

CPR 39.3: Understanding the Implications of a party’s absence due to sickness

Part 39.3 of the Civil Procedure Rules applies to both claimants and defendants of a case with regards to that party’s failure to attend a trial.

The rule grants the court the power to proceed with a trial in the absence of a party, or alternatively to adjourn a trial. In the case of illness, this is done after careful consideration of various factors, such as the seriousness and significance of the absence, the expected duration of the illness, its impact to the overall case and whether the medical evidence submitted is sufficiently sound.

At all times, the court will take into account the overriding objective to ensure that a case is dealt with justly and fairly, and for matters to be resolved in the most efficient and effective way in the interests of justice.

Why is CPR 39.3 so important?

During legal proceedings, unexpected circumstances can arise, therefore potentially disrupting the fair administration of justice.

CPR 39.3 is important as it ensures that a party’s right to a fair trial is upheld. It also provides a structured framework for the courts to make informed considerations regarding the continuation or adjournment of a trial should a party fall sick and become unable to attend court.

What matters will the court take into account?

Where an application is made under CPR 39.3(2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant:

1. acted promptly when they found out that the court had exercised its power to strike out or to enter judgment or make an order against that party;

2. had a good reason for not attending the trial; and

3. has a reasonable prospect of success at the trial.

Accordingly, when dealing with a failure to attend a trial due to sickness, a party will invariably need to provide medical evidence to support their application to set aside any adverse order that the court may make in order to comply with (2) above.

The following cases set out strict and settled guidelines as to what should be included with a party’s medical evidence on an application under CPR 39.3:

Levy v Ellis-Carr [2012] EWHC 63(Ch). This was a High Court decision relating to a property case in which the appellant failed to attend trial in the lower court.

Mr Justice Norris gave detailed reasons as to why an appeal was not the appropriate route to overturn the lower court’s decision (essentially, because that would mean introducing new evidence (i.e., medical evidence) which is not generally allowed on an appeal), and that the appropriate course of action was for the appellant to have made an application under CPR 39.3.

He also provided a succinct list of the type of evidence that a party making such an application should file with the court, namely:

1. the identification of the medical attendant and details of that person’s familiarity with a party’s medical prognosis;

2. details of all the consultations between the patient and the medical attendant;

3. full particulars of the patient’s condition and feature of that condition which would prevent their participation in the trial process; and

4. a reasoned prognosis.

The judge also stated that the report needs to give the court confidence that the evidence expressed by the medical expert was an independent opinion following proper examination of the patient.

Bank of Scotland v Pereira & Pain & Pain [2011] EWCA Civ 241. This was a Court of Appeal case which expands further on the interrelationship between the route to appeal a lower court’s decision and the application of CPR 39.3.

Although the details of the Pereira case are expansive, for the purposes of this article, the important takeaway is that there are well-defined factors that the court will take into account when considering an application under CPR 39.3 on medical grounds, as follows:

1. any history of absences or failures to attend court or apply for adjournments on the part of the applicant;

2. the “genuineness” of the illness;

3. whether the applicant’s ability to present their case would be hampered by the illness; and

4. the absence of any possibility (if claimant) of having the claim determined on its merits.

Conclusion

Missing a trial, for any reason, is a very serious matter. In fact, it is important to note that an absence in court without good reason could mean that a party is in contempt of court. This is a serious criminal offence, and may lead to further and more serious implications further down the line, such as a party being imprisoned or fined.

However, if a party is genuinely sick and can provide sufficient medical evidence to demonstrate that, CPR 39.3 provides an opportunity and a mechanism to rectify the situation.

If you find yourself in a similar situation and would like to contact us to arrange a no-obligation 30 minute appointment to discuss your matter, please click here.

Xean Chew is a Summer Intern at Adam Benedict.

Adam Creasey is a Managing Director at Adam Benedict.