FL-2024-000016 - [2025] EWHC 1903 (Comm)

Fecha: 25-Jul-2025

Proceeding in Torino’s absence

The first question which needed to be addressed was whether it was appropriate to proceed in Torino’s absence. As I indicated at the hearing, I was satisfied that it was appropriate to do so. My reasons for that decision may be briefly summarised as follows:

(1)

Under CPR r. 39.3, the court has a discretion to proceed with a hearing or trial in the absence of a party;

(2)

The right to be present at trial and to be legally represented can by waived by a defendant, including where, ‘knowing, or having the means of knowledge as to, when and where his trial is to take place, he deliberately and voluntarily absents himself and/or withdraws instructions from those representing him’ (R v Jones [2001] EWCA Crim 168, quoted in Banca Nazionale del Lavoro v Provincia di Catanzaro [2023] EWHC 3309 (Comm) at [3]).

(3)

The discretion to permit a hearing to take place or continue in the absence of a defendant is one which should be exercised with great care. The judge should have regard to all the circumstances of the case, including: (a) the nature and circumstances of the defendant’s behaviour in absenting himself from the trial or hearing, including in particular whether it was deliberate, voluntary and such as plainly waived the right to appear; (b) whether an adjournment might result in the defendant attending voluntarily; and (c) whether the defendant is, or wishes to be, legally represented at the hearing.

(4)

In the present case, it appears to me to be clear from the material set out in Mr Danusso’s first witness statement and the Annex thereto that Torino has decided not to participate and has waived its right to legal representation and to participation in this hearing. Torino is clearly aware of these proceedings, as it instructed lawyers and requested the Court to make an order extending the time to file an Acknowledgement of Service. Since then, however, and notwithstanding that it has been sent the other documents in the proceedings, Torino has taken no part. For completeness, and whether or not it would otherwise be an excuse, I note Mr Danusso’s evidence that Torino is one of the wealthiest local authorities in Italy, and would be able to afford representation in England should it choose to do so.

(5)

While it is clearly of importance that a defendant should be able to participate if it wishes to do so, it is also of importance that cases are proceeded with expeditiously and without undue delay. Not to do so is likely to prejudice the claimant, and also other court users, because court time and resources are inefficiently employed if hearings have to be adjourned for non-attendance.

(6)

Having reminded myself of the need for caution, the present appears to me to be a clear case where it is appropriate to proceed in Torino’s absence. That absence is deliberate and voluntary; I do not consider that an adjournment will lead to Torino’s voluntarily appearing; and it is apparent that Torino does not wish to appear or be represented. Good case management, and furtherance of the overriding objective count in favour of proceeding in Torino’s absence.