What happens if I don't go to trial?

Judith Thompson

What will happen if you can't get to your trial on time, and what does failure to attend trial actually mean? 

Allowing an appeal against the dismissal of a claim following non-attendance at court, Martin Spencer J has given guidance on CPR 39.3, which permits the court to strike out a claim if the claimant does not attend.

The London-based claimants and their counsel had travelled to court in Truro, on the day of their trial which was due to commence at 10 am, setting off at 5 am. They notified the court that they were running late, indicating that they hoped to arrive by 11 am. At 11.30 am, when they had not arrived, the Recorder (the judge who was dealing with the case) dismissed the claim under CPR 39.3. The claimants arrived 30 minutes later.

Efforts to get the matter reinstated on the day were unsuccessful and the case was referred to the High Court.

In the High Court, Martin Spencer J considered that the starting point for the appeal was what was meant by "failure to attend trial" under CPR 39.3. It could not mean simply failure to attend on time, otherwise a party who attended a trial listed for 10 am would, at 10.05 am, be a party who had failed to attend trial, which could not be right. It should be a failure to attend by the time the judge due to try the case effectively decides that he cannot wait any further.

The judge found that the Recorder in Truro had not acted reasonably. Fundamentally, the non-attendance at 10 am was because of settlement negotiations which had been going on the night before, which caused the claimant and counsel not to travel to court the day before the trial. As there had been communication with the court, the Recorder was also aware that this was not a case of wilful non-attendance but of a party being late, for reasons beyond their control. It was inappropriate and premature in those circumstances to trigger the power under CPR 39.3, when even attendance by 2 pm would have allowed the case to proceed and be completed within the time allowed by the court. It was a two-day trial and to have waited longer would not have caused serious inconvenience to the claimant or the defendant, or to any of the other parties who were involved.

While the guidance here is helpful, the decision does not mean that parties should not worry about being late for court. Being on time is respectful and avoids difficulties. The case suggests that if you are running late, it is always going to be a good idea to call the court and explain why. Court timetables may also be tight, and leniency may not always be possible.

At Samuels Solicitors, we have helped clients with cases that have been struck out for a variety of reasons, for many years. If your case has been struck out, contact us to see how we can help.