Law Report: 30 November 1995; Absent party could not have case reheard

National Counties Building Society v Antonelli and another: 17 November 1995

National Counties Building Society v Antonelli and another; Court of Appeal (Lord Justice Stuart- Smith, Lord Justice Otton and Lord Justice Pill) 17 November 1995

A party to proceedings who through no fault of his own did not have notice of a hearing until after it had already commenced, but who then remained absent and made no attempt to apply for the hearing to be recommenced, could not later expect the court to set aside a judgment given against him.

The Court of Appeal unanimously dismissed an appeal by the first defendant, Samuel Thomas Antonelli, against the refusal of Judge Barry Green QC on 8 July 1994, to set aside his judgment dated 21 January 1994, granting the plaintiff, National Counties Building Society, an order for possession of business premises at 146/7 Clapton Common, London E5, which had been charged to the plaintiff as security for a mortgage loan, Mr Antonelli's repayment of which had fallen into arrears.

Mr Antonelli had applied, under Order 37, rule 2 of the County Court Rules, to set aside the possession order on the ground of his absence from the four-day hearing in January 1994. The second defendant, Mrs Farzani Antonelli (who claimed to have signed the mortgage through undue influence), and the third defendant, a tenant of the premises, both took part in the trial but Mr Antonelli did not.

He had been acting in person because his legal aid had been withdrawn. He asserted that he had missed the first two days of the hearing because he had been misled by court officials as to the date when it would commence. On the third day he arrived in the court building and spoke with the solicitor acting for the third defendant. He did not then make any application to the judge and left.

At the hearing in July, the judge concluded that, even assuming Mr Antonelli had been misled by court officials, he could still have applied for a rehearing on the third day of the trial but had deliberately chosen not to do so.

Simon Buckhaven QC (Freedman Crossick) for Mr Antonelli; Sir William Goodhart QC and Nigel Ley (Rose & Birn) for Mrs Antonelli; Andrew de la Rosa (Aubrey, Croysdale & Stern) for the plaintiff.

Lord Justice Otton said that a party's prima facie right to have the action heard in his presence must be circumscribed by pragmatic considerations. Applying the "general indications" set out by Lord Justice Leggatt in Shocked v Goldsmith (1 November 1994; CA Transcript 1294) to the facts of this case, his Lordship could find no ground for disturbing the judge's exercise of discretion.

Where a party with notice of proceedings had disregarded the opportunity of participating in the trial, he would normally be bound by the decision. Mr Antonelli had notice of the proceedings before the hearing was over and judgment was given but chose to ignore the opportunity to be heard.

Where judgment had been given, the absent party's explanation for his absence was most important: unless it was not deliberate, but due to accident or mistake, the court would be unlikely to allow a rehearing. In Mr Antonelli's case, there was accident or mistake for the first two days, but after the third day he deliberately absented himself.

Where setting aside judgment would entail a complete retrial on matters of fact which the court had already investigated, the application would not be granted unless there were very strong reasons for doing so.

The court would not consider setting aside judgment regularly obtained unless the applicant enjoyed real prospects of success. The judge would have been entitled to take into account that Mr Antonelli's defence as originally pleaded was merely a total traverse and that his substantive defence did not emerge until the application in July.

Another material consideration was whether the successful party would be prejudiced by the judgment being set aside, especially if he could not be protected against the financial consequences. In this case, the mortgage arrears exceeded pounds 50,000 and there was no realistic prospect of protecting the plaintiff against the financial consequences of setting aside the judgment against Mr Antonelli.

Finally, there was a public interest in there being an end to litigation and in not having the court's time occupied by plurality of litigation.

Paul Magrath, Barrister

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