TBO Investments Limited v Mohun-Smith & Anr

The Court of Appeal has allowed the appeal of an investment advisory firm against the refusal of an application to set aside the strike out of its Defence following non-attendance at trial.

The Appellant, TBO Investments Ltd, was the Defendant to £2.1 million claim by two investors in respect of the provision of allegedly negligent investment advice. Shortly before trial, TBO disinstructed its solicitors and was thereafter represented by one of its two directors, Mr Robinson. In the run-up to trial, Mr Robinson became ill suffering from stress and, having made an application for adjournment on the day of the trial, did not attend at Court. The adjournment application was refused, the Defence struck out and judgment entered with costs, partly on the indemnity basis.
 
TBO applied pursuant to CPR 39.3(3) for the Judgment to be set aside on the grounds that the applicable criteria had been met, namely that there was a “good reason” for non-attendance, the application had been brought promptly and the Defence had a reasonable prospect of success. That application was refused, the Court concluding that the medical evidence was “wholly insufficient” and that TBO had failed to act promptly in bringing the application.

In allowing the appeal, the Master of the Rolls (with whom Macur LJ and Lindblom LJ agreed) found that, in light of the grave consequences for a party’s rights under Article 6 of the ECHR, there was a material difference between an application for late adjournment of a trial and an application to set aside pursuant to CPR 39.3(3) and that, in assessing the conduct of the Appellant and the medical evidence, the High Court had failed to correctly apply the applicable guidance that the Court should generally “not be very rigorous” when considering the applicant's conduct.

The full judgment can be read here: http://www.bailii.org/ew/cases/EWCA/Civ/2016/403.html

Daniel Burgess, instructed by Shakespeare Martineau LLP, acted for the successful Appellant.