The High Court has set aside a summary judgment entered against six care-related companies after their solicitor inadvertently missed the hearing, and ordered the case relisted in the Chancery List.
The judgment, delivered by Mr Justice Richard Humphreys on 25 September 2019, concerned an application by the defendants to set aside an order made by O’Hanlon J on 1 July 2019. The defendants’ solicitor said in an affidavit that, in 32 years of practice, he had not previously overlooked a court date. He learned of the judgment after a writ of fieri facias was served in late July.
The solicitor sought a temporary stay while he was on a family holiday in Spain. The plaintiff’s solicitor refused to postpone execution until his return. The defendants’ solicitor returned on 7 August and moved promptly to address the judgment. The court had stayed execution while the application was pending.
The defendants sought an extension of time under the Rules of the Superior Courts and an order setting aside the judgment, or equivalent relief under the court’s inherent jurisdiction. The court accepted that the defendants had shown a bona fide defence supported by credible evidence. It distinguished an accidental failure to attend from a tactical decision to stay away, saying the latter attracts a different approach. It also found that the defendants had acted with reasonable speed.
The court considered the inherent jurisdiction the more appropriate basis for relief, applying Order 36, rule 33 by analogy. It rejected the argument that the defendants should have appealed instead, explaining that an application to the court that made an order in a party’s absence is the more suitable route. A separate Court of Appeal application to extend time became moot once the judgment was set aside.
The court set aside the 1 July judgment and order and directed that the underlying matter be relisted in the Chancery List in early course. It did not determine the merits of the plaintiff’s claim or the defendants’ defence.