Court Not Persuaded By Arguments For Failing To Act Promptly When Setting Aside Judgment

Mohun-Smith v TBO Investments Ltd

A company which had failed to appear at the first day of a trial unsuccessfully applied to have judgment entered against it set aside.

The Defendant in this case failed to attend the first day of the trial because a key witness was unwell. TBO wrote to the Court requesting an adjournment and attaching a medical certificate. The application was rejected on the basis that the material provided was inadequate. Judgment was entered in favour of the Claimant.

Despite being made aware of the court order within days of the trial, TBO failed to make an application to set aside judgment for some 10 days. At which point the application was refused by the Court.

The Court held that in order to succeed the Defendant was required to fulfil three conditions:

  1. to have acted promptly to restore the proceedings;
  2. to have had a good reason for non-attendance; and
  3. to have a reasonable prospect of success at trial.

Despite the Defendant succeeding on point three, the failure to make the application promptly resulted in the Judge refusing the application. The Judge commented that the “sick note” which had been previously provided had been wholly inadequate and the further medical documents which had been submitted since was not sufficient to persuade the Court.

This case acts as a timely reminder to make applications promptly. Where witnesses are unable to attend trial, detailed and persuasive evidence must also be provided in support of the application.

For further advice and information please contact Forbes.

Sarah Wilkinson

About Sarah Wilkinson

Solicitor in the Insurance department
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