Proceeding when opponent fails to attend hearing

This is a common question and the answer depends on what type of hearing it is, which court or tribunal you are in, and whether the absent party has given any prior notice or explanation. Here is a general overview of the position in England and Wales.

Civil courts (County Court and High Court):

If the claimant does not attend, the court may strike out the claim. If the defendant does not attend, the court may proceed in the defendant's absence and enter judgment against them. The court has a broad discretion under the Civil Procedure Rules, particularly CPR Part 39.3, which deals with non-attendance at trial.

Before making any order, the court will usually check whether the absent party was properly served with notice of the hearing. If they were, the court can proceed. If service is in doubt, the judge may adjourn rather than proceed.

If judgment is given in a party's absence, that party can apply to have the judgment set aside under CPR 39.3(5). To succeed, they generally need to show that they had a good reason for not attending, that they acted promptly in applying to set aside, and that they have a reasonable prospect of success at trial. All three conditions must usually be met.

Employment Tribunal:

The tribunal has power under Rule 47 of the Employment Tribunals Rules of Procedure 2013 to dismiss the claim or proceed in the absence of either party. If the respondent does not attend, the tribunal may hear the case and decide it on the evidence available. If the claimant does not attend, the tribunal may dismiss the claim. Again, the absent party can apply for the decision to be reconsidered under Rule 70 to 73.

Small Claims Court (small claims track in the County Court):

The same general principles apply. If a party does not attend a small claims hearing, the judge can proceed and decide the case. The absent party can apply to set aside any judgment made, and the test under CPR 39.3(5) applies.

Magistrates Court and Crown Court (criminal matters):

In criminal cases, different rules apply. If a defendant does not attend, the court may issue a warrant for their arrest, or in some cases proceed in their absence, depending on the nature of the offence and whether the defendant was properly notified. For summary offences, the court has the power to try the matter in absence under section 11 of the Magistrates Courts Act 1980. In the Crown Court, proceeding in a defendant's absence is possible but rarer and involves careful judicial consideration.

Family Court:

The family court also has discretion to proceed in a party's absence, provided they have been given proper notice. The court will consider whether it is fair and in the interests of justice to do so, and in children cases will always prioritise the welfare of the child.

Practical points:

1. If the other side does not attend, make sure you are ready to present your case fully. Do not assume the judge will simply give you what you want. Most judges will still want to hear your evidence and be satisfied that your case is made out.

2. Bring proof that the other side was served with notice of the hearing. This is essential because the court will want to confirm proper service before proceeding.

3. If you are the one who cannot attend, notify the court and the other side as early as possible and apply for an adjournment. Simply not turning up without explanation is always risky and may result in an adverse order.

4. If a judgment or order is made against you in your absence, act quickly. Delay in applying to set aside will count against you.

If you can tell me what type of case you are involved in, which court or tribunal it is in, and what stage you are at, I can give you a more specific answer tailored to your situation.