In its decision in Buckley v Greenwood Academies Trust, the High Court refused the Claimant’s application under CPR 39.3 (3) to set aside the judgment which had dismissed the Claimant’s claim. 

The Claimant had been employed as a teacher by the Defendant trust, following a TUPE transfer. Shortly after the transfer her performance was called into question. After a period of performance management the Claimant was dismissed by a panel of academy advisory council members. The Claimant pursued a claim in the High Court, principally on the ground that her dismissal was void for being contrary to the principles of natural justice. This assertion was made on the grounds that only a panel formed from a board of governors could dismiss her, despite the fact that the academies typically had a trust board, rather than a board of governors. Further, the trade unions had agreed, on behalf of the Claimant, that the levels of escalation pursuant to the appropriate disciplinary/capability policy (which were found by the judge to be non-contractual) would reflect the Defendant Trusts own internal structures. A three-day trial was listed and on the first day almost all of the witness evidence was heard. Only one ancillary point remained, which would be put to one of the witnesses on the second day. However, the Claimant did not attend on the second day; the reason she gave was exhaustion. However, with the Defendant’s agreement and the Claimant’s promise to attend, the judge agreed to sit on the third day. Unfortunately the Claimant failed to attend on the third day. The trial therefore proceeded in her absence and the claim was subsequently dismissed. 

The Claimant applied, pursuant to CPR 39.3 (3), for judgment to be set aside as she had not attended part of the trial. The Claimant argued that she had (i) made the application promptly (this was not disputed by the Defendant), (ii) good reasons for non-attendance, namely medical and financial difficulties, and (iii) that she had reasonable prospects of success on her claim.

HELD: It was not clear that CPR 39.3 (3) applied given that the Claimant had attended part of the trial. However, even if one assumed that it did apply there were no good reasons for non-attendance. It was understandable that the Claimant had become tired following cross-examination on the first day. However, the trial was short, the Claimant was familiar with her own points and had summarised these in opening submissions. Furthermore, the trial was almost finished.  If the Claimant wished to rely on any medical disability she would require far more evidence to support this; the decision in Levy v Ellis-Carr [2012] EWHC 63 (Ch) was relied on. As to the financial limitations preventing her from attending, this is not a point that had been raised previously by the Claimant (including her previous explanations for non-attendance) and the judge was not satisfied that this prevented the Claimant’s attendance. On this ground alone the application was dismissed. 

The judge found that if it had been necessary to decide the prospects of success the application would also fail on that ground. The Claimant’s submissions on the merits took a different focus to those relied on at the trial, but these points still had no reasonable prospects. In any event, to succeed the Claimant needed to demonstrate that her dismissal was void and there was clear authority that this was not possible for an employee (rather than an officer of a public body) (see Ridge v Baldwin [1964] AC 64). The judge refused permission to appeal, commenting that the application was hopeless. 

Bayo Randle acted for the defendant.