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What does failure to attend trial actually mean?

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In the recently reported case of Akita and another v Governor and Company of the Bank of Ireland [2019] EWHC 1712 (QB) (31 January 2019), the High Court has allowed an appeal against the dismissal of a claim following non-attendance at Court. The appeal related to the application of Civil Procedure Rule 39.3, which permits the Court to strike out a claim if the claimant does not attend the trial of the matter.

The case concerned London-based claimants and their barrister who had to travel to Truro in Cornwall for the hearing of their claim. The trial was due to begin at 10am and accordingly the claimants set off from London at 5am. When it became clear that they were going to be late they notified the Court and indicated that they hoped to arrive by 11am.  At 11.30am when the claimants had not arrived, the recorder dismissed the claim under Civil Procedure Rule 39.3. The claimants then arrived 30 minutes later at around midday.

Upon arriving at Court, the claimants made efforts to get the claim reinstated on the day. These attempts were unsuccessful. The claimants then made an application to set aside the Judge’s decision under Civil Procedure Rule 39.3 but this was dismissed with permission to appeal against the order. The High Court considered the appeal with a focus on what was meant by "failure to attend trial" under Civil Procedure Rule 39.3. The Court considered that it could not mean simply failing to attend on time, but a complete failure to attend or non attendance until such time as the trial Judge effectively decides that they cannot wait any further.

The High Court on appeal considered that the recorder had not acted reasonably in this case and he should have given due consideration to the fact that the claimants had delayed travelling down the night before the trial so to accommodate last minute settlement negotiations. Moreover, the claimants had been diligent in informing the Court of their delay and it was not a case of wilful non-attendance and merely a matter of running late. The High Court on appeal felt it was inappropriate and premature to dismiss the claim under Civil Procedure Rule 39.3, especially where it was clear that if the claimants had attended by 2pm, the trial could have commenced and be completed within the time allocated by the Court for the trial in any event.

Whilst the decision its helpful, especially where a party at trial is delayed due to unforeseen and legitimate circumstances, and Judges will now need to consider all circumstances in the round before dismissing a claim due to non attendance, it remains critical for all parties to attend a trial on time and avoid running the risk of the case being determined in their absence.

You can contact Torion Bowles to discuss this case further by calling 023 8071 7455 or email

This article has been published as part of the latest issue of our Commercial Brief, detailed within the In Brief section. You can view the other In Brief articles below:


This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.