Saima Fatima v Family Channel Ltd

JurisdictionEngland & Wales
JudgeLady Justice Carr,Popplewell LJ,Lewison LJ
Judgment Date01 July 2020
Neutral Citation[2020] EWCA Civ 824
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C08Y591
Date01 July 2020

[2020] EWCA Civ 824

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE COUNTY COURT AT BRADFORD

HIS HONOUR JUDGE GOSNELL

Royal Courts of Justice Strand, London, WC2A 2LL

Before:

Lord Justice Lewison

Lord Justice Popplewell

and

Lady Justice Carr

Case No: C08Y591

Between:
Saima Fatima
Appellant/Defendant and Part 20 Claimant
and
Family Channel Limited
1 st Respondent/Claimant and 1 st Part 20 Defendant
and
Mr Tahir Riaz
2 nd Respondent/ 2 nd Part 20 Defendant

Adam C. Willoughby (instructed by Stachiw Bashir Green Solicitors) for the Appellant

Stuart Roberts (instructed by Certus Solicitors LLP) for the Respondent

Hearing date: 24 June 2020

Approved Judgment

Lady Justice Carr

Introduction

1

This appeal raises an important point of principle, namely the interplay between an unsuccessful application to adjourn a trial under CPR Part 3.1(2)(b) and a subsequent application under CPR Part 39.3 to set aside a judgment against a non-attending party. CPR Part 39.3 provides materially as follows:

“(3) Where a party does not attend 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.

(4) An application under paragraph…(3) must be supported by evidence.

(5) Where an application is made under paragraph…(3) by a party who failed to attend trial, the court may grant the application only if the applicant—

(a) acted promptly when he found out that the court had exercised the 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.”

2

It is a second appeal by the Appellant (“Ms Fatima”) against the order HHJ Gosnell (“the Judge”) of 4 October 2019. By that order the Judge allowed the appeal of the Respondents (“FCL”, “Mr Riaz”) against the order of DJ Hickinbottom (“the District Judge”) of 13 March 2019. The District Judge had granted Ms Fatima's application to set aside the judgment and orders entered against her by Mr Recorder Bebb QC (“the Recorder”) on 17 January 2019.

Background facts and the trial before the Recorder

3

In January 2016 FCL commenced proceedings against Ms Fatima for the repayment of some £28,000 and/or damages and interest for allegedly unauthorised withdrawals by Ms Fatima from FCL's bank account whilst she was engaged as an administrative assistant by FCL in 2013 and 2014. Ms Fatima denied the claim and countered with a Part 20 Claim against FCL and Mr Riaz, the sole director of and a shareholder in FCL, alleging that Mr Riaz had raped and falsely imprisoned her, for which FCL was said to be vicariously liable.

4

The proceedings were stayed between December 2016 and May 2018 whilst police enquiries into the allegation of rape were ongoing. The matter was then listed for a three-day trial commencing 16 January 2019 and came before the Recorder.

5

Ms Fatima did not attend court that day. Rather, counsel on her behalf applied for an adjournment of the trial under CPR Part 3.1(2)(b), based on Ms Fatima's illness. Reliance was placed on two GP letters. First, there was a letter dated 27 December 2018 from Dr Ishfaq which stated:

C08Y591

“This letter is to confirm that the Defendant was suffering from depression which is being managed by her GP. She was also suffering from insomnia, flashbacks and anxiety also, being treated with medication with regular GP follow-up as well as having counselling. She currently does not feel ready to go through with the court case.”

6

A further letter dated 15 January 2019 from a different GP, Dr Clarke, stated:

“The Defendant is suffering from severe anxiety and low mood and is really struggling. A large part of it is caused by her upcoming court appearance. She is terrified of facing the person that has accused her. On review of her today she is highly distressed by this process. She does not have any family or friends supporting her through this. I would advise her not to appear in court tomorrow due to her mental health and lack of support and would appreciate if you would make other arrangements for whatever part of the legal process she is required to take part in.”

7

The Recorder considered the authorities relating to adjournments for medical reasons, including Decker v Hopcroft [2016] EWCH 2962 at [24] which quotes from the well-known decision of Norris J in Levy v Ellis-Carr [2012] EWHC 63 (Ch); [2012] BIPR 347 (“ Levy”) at [36]:

“In my judgment [the additional evidence] falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case)….”

8

He also considered Solanki v Intercity Telecom Ltd [2018] EWCA Civ 101; [2018] 1 Costs LR 103 (“ Solanki”). He concluded that the medical evidence fell some way short of excusing Ms Fatima's attendance. Neither doctor stated that she was unfit to attend trial. She was clearly still able to give instructions to her solicitors and counsel. He expressed certain concerns:

“…The Defendant has not attended today. Counsel is instructed to apply for an adjournment. He is instructed to apply to strike out the case but without being provided with any bundles of the evidence. He is not instructed in the trial. That is the Defendant's choice. She has had plenty of time to instruct solicitors and counsel to attend trial. I am bound to say that this conduct seems to me to be an attempt by the Defendant to force the Court's hand. At the moment I keep an open mind on this, but if it is, she would be mistaken if she thinks she can achieve that.”

9

The Recorder referred to the serious nature of the allegations on both sides and stated that the action had gone on for “far too long”. He ruled that he would start the trial on the following day after making arrangements for adjustments to be made to assist Ms Fatima in giving evidence.

10

Ms Fatima did not attend the next day, 17 January 2019, nor did anyone on her behalf. By this stage there was a letter of 16 January 2019 from Bradford Crisis and Sexual Abuse Service available. The letter stated that the Service had been working with Ms Fatima since 2016. The Recorder indicated that at face value this would mean that the trial would never happen. There was also a text message sent by Ms Fatima's husband to her solicitors indicating that Ms Fatima had been admitted to the Accident and Emergency Department of Bradford Royal Infirmary that day but with no further information. Enquiries made by court staff revealed that Ms Fatima was in hospital with chest pains, vomiting, headaches and hysteria.

11

The Recorder reconsidered his earlier ruling in the light of this additional information. His assessment of Ms Fatima's conduct overall was as follows:

“In my view, the Defendant, by her conduct of the case, has disclosed that she has no real intention of attending trial. I rehearsed yesterday the history of the conduct of this case. She has instructed solicitors to act on her behalf to strike out the claim and, failing that, to seek an adjournment on ill health grounds. Given the issues in this case, failure to provide the solicitors with instructions and funds to represent her at the trial must have been ongoing for some time. This is no last minute unforeseen event…..Even today I have had no information that the Defendant wishes to act in person. All I have had is information seeking to explain why she is not at court.”

12

He ruled that the medical evidence was insufficient to justify an adjournment. He took into account the interests of both sides. Whilst he bore Ms Fatima's interests in mind, FCL was entitled to resolution of its claim. It was four years since the events in question. The sooner the case was resolved, the better for all parties.

13

The Recorder thus decided to proceed in the absence of Ms Fatima. He struck out her defence and dismissed her Part 20 claims. He entered judgment in favour of FCL in the sum of £28,358, together with interest and costs.

The application to set aside

14

On 29 January 2019 Ms Fatima applied to set the order aside, as was her right under CPR Part 39.3. That application came before the District Judge on 13 March 2019 and was successful. The judgment and orders of the Recorder were set aside and directions given for the matter to proceed to trial.

15

In accordance with CPR 39.3(4), the application was supported by evidence in the form of a witness statement dated 31 January 2019 from Ms Fatima. She stated, amongst other things:

“3…a. The reason for my non-attendance at the Trial. I have recently not been well. My GP has diagnosed me as suffering from

severe anxiety. He issued a sick note on 15 January 2019 with that diagnosis [exhibited]. In consultation with me, he expressed the view that he did not feel that I was well enough to attend Court [letter of 15 January 2019 exhibited]. As a result of the 2 nd Part 20

Defendant's rape of me I have had to...

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