Q&As

If a claim is struck out following the claimant’s non-attendance at the hearing of the application to strike out and the claimant did not receive notification of the hearing date, can the claimant apply for the strike out to be set aside/appealed and what is the time limit for doing so?

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Published on LexisPSL on 09/01/2018

The following Dispute Resolution Q&A provides comprehensive and up to date legal information covering:

  • If a claim is struck out following the claimant’s non-attendance at the hearing of the application to strike out and the claimant did not receive notification of the hearing date, can the claimant apply for the strike out to be set aside/appealed and what is the time limit for doing so?
  • Invalid service
  • Service

When a party has not been present at a hearing/trial, they can seek to have the order or judgment made in their absence set aside under CPR 39.3(3).

Invalid service

In Nelsons v Clearsprings (Management) Limited, the court held that CPR 39.3 contemplated a trial in the absence of a party who had been served in accordance with the rules or in respect of whom service had been dispensed with.

Therefore, where the party has not been served, CPR 39.3(5) is not applicable. Rather, the party can apply to set aside the judgment pursuant to the court's powers in CPR 3.1(2)(m) and CPR 3.10. Where the court is faced with such an application the court is not restricted to curing that irregularity by setting aside the order—it may dispense with service and in exercising its discreti

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