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He had been acting in person because his legal aid had been withdrawn.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

Start your day with The Independent, sign up for daily news emails
News
election 2015The 10 best quotes of the campaign
News
A caravan being used as a polling station in Ford near Salisbury, during the 2010 election
election 2015The Independent's guide to get you through polling day
News
people
Voices
David Blunkett joins the Labour candidate for Redcar Anna Turley on a campaigning visit last month
voicesWhat I learnt from my years in government, by the former Home Secretary David Blunkett
Have you tried new the Independent Digital Edition apps?
ebooks
ebooksA celebration of British elections
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Ashdown Group: Marketing Manager (B2B) - Romford - £40,000 + car

£35000 - £40000 per annum + car and benefits: Ashdown Group: Marketing Manager...

Ashdown Group: Helpdesk Analyst - Devon - £20,000

£18000 - £20000 per annum: Ashdown Group: Helpdesk Analyst - Devon - £20,000 ...

Ashdown Group: Data Scientist - London - £50,000 + bonus

£35000 - £50000 per annum + generous bonus: Ashdown Group: Business Analytics ...

Ashdown Group: IT Project Coordinator (Software Development) - Kingston

£45000 - £50000 per annum: Ashdown Group: IT Project Coordinator (Software Dev...

Day In a Page

General Election 2015: ‘We will not sit down with Nicola Sturgeon’, says Ed Balls

'We will not sit down with Nicola Sturgeon'

In an exclusive interview, Ed Balls says he won't negotiate his first Budget with SNP MPs - even if Labour need their votes to secure its passage
VE Day 70th anniversary: How ordinary Britons celebrated the end of war in Europe

How ordinary Britons celebrated VE Day

Our perception of VE Day usually involves crowds of giddy Britons casting off the shackles of war with gay abandon. The truth was more nuanced
They came in with William Caxton's printing press, but typefaces still matter in the digital age

Typefaces still matter in the digital age

A new typeface once took years to create, now thousands are available at the click of a drop-down menu. So why do most of us still rely on the old classics, asks Meg Carter?
Discovery of 'missing link' between the two main life-forms on Earth could explain evolution of animals, say scientists

'Missing link' between Earth's two life-forms found

New microbial species tells us something about our dark past, say scientists
The Pan Am Experience is a 'flight' back to the 1970s that never takes off - at least, not literally

Pan Am Experience: A 'flight' back to the 70s

Tim Walker checks in and checks out a four-hour journey with a difference
Humans aren't alone in indulging in politics - it's everywhere in the animal world

Humans aren't alone in indulging in politics

Voting, mutual back-scratching, coups and charismatic leaders - it's everywhere in the animal world
Crisp sales are in decline - but this tasty trivia might tempt back the turncoats

Crisp sales are in decline

As a nation we're filling up on popcorn and pitta chips and forsaking their potato-based predecessors
Ronald McDonald the muse? Why Banksy, Ron English and Keith Coventry are lovin' Maccy D's

Ronald McDonald the muse

A new wave of artists is taking inspiration from the fast food chain
13 best picnic blankets

13 best picnic blankets

Dine al fresco without the grass stains and damp bottoms with something from our pick of picnic rugs
Barcelona 3 Bayern Munich 0 player ratings: Lionel Messi scores twice - but does he score highest in our ratings?

Barcelona vs Bayern Munich player ratings

Lionel Messi scores twice - but does he score highest in our ratings?
Martin Guptill: Explosive New Zealand batsman who sets the range for Kiwis' big guns

Explosive batsman who sets the range for Kiwis' big guns

Martin Guptill has smashed early runs for Derbyshire and tells Richard Edwards to expect more from the 'freakish' Brendon McCullum and his buoyant team during their tour of England
General Election 2015: Ed Miliband's unlikely journey from hapless geek to heart-throb

Miliband's unlikely journey from hapless geek to heart-throb

He was meant to be Labour's biggest handicap - but has become almost an asset
General Election 2015: A guide to the smaller parties, from the the National Health Action Party to the Church of the Militant Elvis Party

On the margins

From Militant Elvis to Women's Equality: a guide to the underdogs standing in the election
Amr Darrag: Ex-Muslim Brotherhood minister in exile still believes Egypt's military regime can be replaced with 'moderate' Islamic rule

'This is the battle of young Egypt for the future of our country'

Ex-Muslim Brotherhood minister Amr Darrag still believes the opposition can rid Egypt of its military regime and replace it with 'moderate' Islamic rule, he tells Robert Fisk
Why patients must rely less on doctors: Improving our own health is the 'blockbuster drug of the century'

Why patients must rely less on doctors

Improving our own health is the 'blockbuster drug of the century'