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 seeking to set aside the judgment, had a good reason for not attending the trial (emigration, late service of documents, and reasonable belief the case was not ready), and had a reasonable prospect of success at trial. The original judge erred in concluding the absence was a tactic to avoid the court and failed to properly consider the reasons for non-attendance. The judgment and orders against the defendant were set aside.

Citation
[2009] EWHC 2659 (QB)
Parties
Claimant: Sir John Fitzgerald Limited; Defendant: Hugh Maxwell Macarthur
Jurisdiction
England and Wales
Judgment Date
28 October 2009
Procedural Posture
Civil Appeal / High Court Appeal From County Court Judgment
Outcome
Appeal allowed; judgment and orders set aside; case remitted for retrial.
Legal Topics
Setting Aside Judgment, Non Attendance at Trial, Fraudulent Misrepresentation, Inducement, Procedural Fairness
Civil Procedure Contract Law Tort Law Setting Aside Judgment Non Attendance at Trial Fraudulent Misrepresentation Inducement Procedural Fairness

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

Sir John Fitzgerald Limited

Claimant

Hugh Maxwell Macarthur

Defendant

Procedural Posture

Civil Appeal / High Court Appeal From County Court Judgment

Legal Issues

  1. 1 Whether the judgment against the defendant should be set aside under CPR 39.3(3) due to non-attendance at trial
  2. 2 Whether the defendant acted promptly in seeking 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 seeking to set aside the judgment, had a good reason for not attending the trial (emigration, late service of documents, and reasonable belief the case was not ready), and had a reasonable prospect of success at trial. The original judge erred in concluding the absence was a tactic to avoid the court and failed to properly consider the reasons for non-attendance. The judgment and orders against the defendant were set aside.

Court Disposition

Appeal allowed; judgment and orders set aside; case remitted for retrial.

Orders

  • Judgment and orders of 3 September 2007 set aside
  • Case remitted to County Court for retrial