Q&As

Should I appeal an order made under CPR 39.3 or make an application under CPR 39.3(3)?

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Published on LexisPSL on 15/08/2017

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

  • Should I appeal an order made under CPR 39.3 or make an application under CPR 39.3(3)?
  • The power of the court to strike out and restore proceedings under CPR 39.3?
  • What is the relationship between CPR 39.3 and the ability to appeal an order or judgment under Part 52?

The power of the court to strike out and restore proceedings under CPR 39.3?

Pursuant to CPR 39.3, in the absence of a party, a court may proceed with a trial and may thereafter:

  1. proceed to strike out the whole of the proceedings

  2. where the claimant does not attend, strike out the claim and any defence to any counterclaim

  3. where the defendant does not attend, the court may strike out any defence and/or counterclaim

CPR 39.3(2) and CPR 39.3(3) entitle the court to restore proceedings struck out in these circumstances and for a party against whom an adverse order or judgment has been made in their absence, to apply for that judgment or order to be set aside. Where such an application is made the applicant must demonstrate that they:

  1. acted promptly when they found out that the court had exercised its power to strike out or enter judgment or make an order against them

  2. had a good reason for not attending the trial, and

  3. have a reasonable prospect of success at the trial

These three conditions are known as the CPR 39.3(5) conditions. For more information, see Practice Notes: Non-attendance by the parties at trial and Litigants in person—trial and non-attendance.

If each of these three conditions are met, ‘it would be a very exceptional case where the court did not set aside the order’ (Mohun-Smith

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