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Tinkler v Elliot, Court of Appeal, 10 October 2012

13 November 2012
The issues

Judgment in the absence of a party – setting aside – degree of indulgence appropriate to litigant in person

The facts

Mr Elliot was a helicopter pilot who entered into a contract with WA Developments International Ltd (WADI), whose Chairman was Andrew Tinkler. The relationship ended acrimoniously and Mr Elliot commenced proceedings in respect of matters in dispute in the Chancery Division. That action was compromised. As part of the compromise, Mr Elliot gave an undertaking not to make or repeat damaging allegations about WADI.

Subsequently Mr Elliot issued proceedings for defamation against Mr Tinkler and Mr Tinkler made an application to enforce Mr Elliot’s undertaking.

Subsequently, Mr Tinkler and WADI issued proceedings for damages and an injunction in respect of an alleged breach of that undertaking.

Subsequently again, Mr Elliot commenced various actions against Mr Tinkler and WADI. All of these proceedings were certified as being without merit. In respect of this claim, which was the subject of the Court of Appeal’s decision, Mr Elliot had failed to attend the trial before Judge Tetlow in March 2010. He had sent a letter from a GP in which a GP said that in his opinion Mr Elliot was not medically fit to attend court. On the 12 March 2010 the Court Listing Officer sent an email to Mr Elliot telling him that in the absence of a formal application to vacate, the matter remains listed for trial on 15 March 2010. Mr Elliot said he never received that email. The hearing proceeded on the 15 March 2010. Mr Tinkler and WADI were represented. The judge granted a permanent injunction, dismissed Mr Elliot’s counterclaim, and made a general civil restraint order for two years. The order was served on Mr Elliot on the 15 March 2010.

On the 23 April 2010 he applied for an extension of time for permission to appeal against an order in November 2009 striking out his recent proceedings against Mr Tinkler. Those proceedings were dismissed in June by the Deputy Master in the Court of Appeal. The dismissal resulted from Mr Elliot’s failure to lodge a court bundle by the relevant deadline.

There might be facts and circumstances in relation to a litigant in person which went to an assessment of promptness, but they would only operate close to the margins

In May 2010 Mr Tinkler and WADI applied to commit Mr Elliot for breach of the injunction made at the trial in March 2010. The judge found some of the alleged breaches substantiated and imposed a suspended sentence of imprisonment.

In July 2010 Mr Elliot applied to the Court of Appeal for permission to reinstate his appeal against the order of November 2009 and an extension of time for permission to appeal against Judge Tetlow’s order in March 2010. Both applications were refused on paper.

In December 2011 Mr Elliot issued an application for permission to apply to set aside the order of Judge Tetlow made in March 2010.

In January 2012 the judge granted Mr Elliot, as the subject of a civil restraint order, permission to apply to set aside the judgment. The application came before Sharpe, J in February 2012 who granted Mr Elliot’s application and set the judgment aside. Mr Tinkler and WADI appealed.

The decision

In Bank of Scotland v Pereira, the Master of the Rolls had said that an application to set aside judgment was now subject to clear rules, as had been made clear in Regency Rolls Ltd v Carnall. The court no longer had a broad discretion. All three of the conditions listed in CPR 39.3(5) had to be satisfied before it could be invoked to enable the court to set aside the order.

39.3(5) read:
“The court may grant the application only if the applicant a) acted promptly when he found that the court had exercised its power… to enter judgment or make an order against him; b) had a good reason for not attending the trial; and c) had a reasonable prospect of success at the trial.”

The Master of the Rolls had gone on to say that if each of those three hurdles was crossed, it seemed clear that it would be a very exceptional case where the court did not set aside the order.

In granting Mr Elliot his application, Sharpe, J had relied on the question of promptness on Mr Elliot’s mental health and his ignorance as a litigant in person of the availability of an application to set aside.

The judge’s findings on the mental health problems were accepted by the Court of Appeal, which saw no reason to go behind her findings. However, it could not be said that Mr Elliot was incapable of functioning as a litigant in person throughout the relevant period. On the contrary, the chronology showed that he was an extremely active litigant. Looked at in isolation, Mr Elliot’s health issues were not capable of justifying a finding of promptness. Sharpe, J had not thought so either, but had found that it was the health issues in combination with acting person that helped Mr Elliot.

There might be facts and circumstances in relation to a litigant in person which went to an assessment of promptness, but they would only operate close to the margins. An opponent of a litigant in person was entitled to assume finality without expecting excessive indulgence to be extended. On any view, the fact that a litigant in person ‘did not really understand’ or ‘did not appreciate’ the procedural courses open to him for months did not entitle him to extra indulgence. For these reasons it was not open to the judge to find the promptness required satisfied.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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