Morgan v Smalley [2004] EWCA Civ 358 (23 January 2004)

Morgan v Smalley [2004] EWCA Civ 358 (23 January 2004)

The appellant failed to act promptly in applying to set aside the judgment, with a delay of 15 months being grossly excessive. Although she had a good reason for non-attendance, she did not demonstrate a reasonable prospect of success at trial. The judge's exercise of discretion in refusing the adjournment and the application to set aside was correct and beyond reproach.

Citation
[2004] EWCA Civ 358
Parties
Appellant/claimant: Cole Morgan; Respondent/defendant: Kenneth Smalley
Jurisdiction
England and Wales
Judgment Date
23 January 2004
Procedural Posture
Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Setting Aside Judgment, Adjournment, CPR 39.3, Discretion of the Court, Delay in Application, Legal Aid Difficulties
Civil Procedure Setting Aside Judgment Adjournment CPR 39.3 Discretion of the Court Delay in Application Legal Aid Difficulties

Case Brief

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Parties

Cole Morgan

Appellant/claimant

Kenneth Smalley

Respondent/defendant

Procedural Posture

Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal

Legal Issues

  1. 1 Whether the refusal to adjourn and refusal to set aside judgment was correct
  2. 2 Whether the appellant acted promptly in applying to set aside judgment under CPR 39.3(5)
  3. 3 Whether the appellant had a good reason for non-attendance at trial

Ratio Decidendi

The appellant failed to act promptly in applying to set aside the judgment, with a delay of 15 months being grossly excessive. Although she had a good reason for non-attendance, she did not demonstrate a reasonable prospect of success at trial. The judge's exercise of discretion in refusing the adjournment and the application to set aside was correct and beyond reproach.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs