Setting aside judgement for failure to appear

The court may set aside a judgement if a party did not appear at trial, under terms and if the application is made within 15 days after the hearing

A strong procedural advantage is gained by the party who goes to the hearing of a case when the other party fails to appear at the trial and the court issues judgement against them. The procedure to be followed is determined in the Civil Procedure Rules, Order 33, as well as the remedy available due to failure to appear. It is a basic principle of natural justice that the court shall not proceed to the hearing of a case unless it is satisfied that the party against whom the case is directed has been notified of the case, the right of defence and the date of hearing.

In the event that the party is represented by a lawyer, it is considered that they are aware of the proceedings and the failure of the lawyer to appear is not a reason, without further justification, for setting aside a judgement issued in their absence.

The matter is regulated by Order 33 R.5 of the Civil Procedure Rules which provides that, a judgement obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem fit, upon an application made within fifteen days after the trial, and no later.

A property dispute arose between ex-spouses and ended up in the Family Court. Despite the fact that the wife filed a defence and counterclaim and was represented by a lawyer, she did not appear on the day of the continuation of the hearing and the court dismissed her counterclaim. On the date the court set the continuation, her lawyer was present and was informed of that date. The hearing proceeded in the wife’s absence and was rescheduled for addresses on a new date. The court then reserved its judgement which it later issued for the ex-wife to pay the husband a specified sum, plus interest and costs.

The wife then applied to the Family Court with an application to set aside the judgement, which she filed nine months after the hearing and judgement. The court examined her application and ruled her conduct showed disregard and contempt of the proceedings and for the rights of the opposing party. Because the application was dismissed, the wife appealed, alleging that the decision was erroneous, on the basis that the court proceeded with the hearing of the proof of the case and did not notify the wife of the date of the continuation and of the decision.

The Supreme Court hearing the appeal in its judgement issued in Appeal No.16/2022, dated 13.2.2023, held that the grounds of appeal related to the interpretation of Order 33 of the Civil Procedure Rules. The Court pointed out that the position of the wife as appellant was based on a wrong view of things. On the date the Court adjourned the case her lawyer was present and on the date the case was adjourned for continuation of the hearing, the wife was called and was absent. At the request of her ex-husband the counterclaim was dismissed and the hearing was set for continuation with addresses.

The Supreme Court held that the Family Court was correct in holding that Order 33 R.5 applied and consequently the 15-day time limit after the hearing was valid and mandatory. It referred to relevant case law which states that Order 33 R.5 is clear. There was no scope for application of any other procedural provision in the case. The opposite would mean that from the same issue one rule provides a deadline and the other does not. It agreed with the position of the husband’s lawyer that the pandemic should not be used as panacea in every case where procedural lapses are found, especially in the absence of clear indication of the reasons for them. It adopted the judgement of the trial court and dismissed the wife’s appeal.

George Coucounis is a lawyer practicing in Larnaca and founder of George Coucounis LLC, Advocates & Legal Consultants, [email protected]