Sir John Fitzgerald Ltd v Macarthur [2009] EWHC 2659 (QB) (28 October 2009)

Sir John Fitzgerald Ltd v Macarthur [2009] EWHC 2659 (QB) (28 October 2009)

The defendant satisfied the requirements of CPR 39.3(5): he acted promptly in applying to set aside the judgment, had a good reason for not attending the trial (emigration, late service of documents, and confusion over trial readiness), and had a reasonable prospect of success at trial. The judgment entered in his absence was therefore set aside.

Citation
[2009] EWHC 2659
Parties
Claimant: Sir John Fitzgerald Limited; Defendant: Hugh Maxwell Macarthur
Jurisdiction
England and Wales
Judgment Date
28 October 2009
Procedural Posture
Appeal / Judgment on Application to Set Aside Judgment Entered in Absence of Defendant at Trial
Outcome
Appeal allowed; judgment set aside; case remitted for trial.
Legal Topics
Setting Aside Judgment, Non Attendance at Trial, Fraudulent Misrepresentation, Inducement, CPR Part 39.3, CPR Part 52, Promptness in Applications, Reasonable Prospect of Success
Civil Procedure Contract Law Tort Law Setting Aside Judgment Non Attendance at Trial Fraudulent Misrepresentation Inducement CPR Part 39.3 +3 more

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Parties

Sir John Fitzgerald Limited

Claimant

Hugh Maxwell Macarthur

Defendant

Procedural Posture

Appeal / Judgment on Application to Set Aside Judgment Entered in Absence of Defendant at Trial

Legal Issues

  1. 1 Whether the judgment entered in the absence of the defendant should be set aside under CPR 39.3(3)
  2. 2 Whether the defendant acted promptly in applying to set aside the judgment
  3. 3 Whether the defendant had a good reason for not attending the trial

Ratio Decidendi

The defendant satisfied the requirements of CPR 39.3(5): he acted promptly in applying to set aside the judgment, had a good reason for not attending the trial (emigration, late service of documents, and confusion over trial readiness), and had a reasonable prospect of success at trial. The judgment entered in his absence was therefore set aside.

Court Disposition

Appeal allowed; judgment set aside; case remitted for trial.

Orders

  • Judgment of 3 September 2007 set aside.
  • Stay of execution continued until further order.