The Commercial Court has allowed an application to set aside an order under CPR 23.11(2) (power to re-list an application made where the defendant fails to attend a hearing) but ordered the defendants to pay a sum into court under CPR 3.1(5) in light of their non-compliance with court orders.
The defendants failed to attend or obtain representation for a hearing. They subsequently sought to set aside the order made at the hearing under CPR 23.11(2). The explanation for the failure to attend was unconvincing. It also had to be seen in the context of previous non-compliance with the court timetable, including a failure to serve witness statements in time or by the time of the application. In addition, the matter was weeks away from trial.
HHJ Mackie QC stated that the defendants had failed to comply with the overriding objective and specific court orders. He noted that, under CPR 3.1(5) the court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol. He agreed to set aside his original order on the basis that the defendants:
• Agreed to comply with the time limits proposed by the claimants for the remaining pre-trial directions
• Paid all existing costs orders, including the one made at the conclusion of the present hearing, within 14 days of the hearing
• Also within 14 days of the present hearing, deposited £25,000 in court
The judge stated that he had granted the defendants relief in these circumstances to allow the trial to proceed with the benefit of both parties’ evidence (here, the relevant witness statements).
Case: Carlton Advisory Services and others v Dorchester Holding Ltd  EWHC 3341 (Comm) (29 August 2014) (Westlaw).