Dismissal of case due to lawyer's failure to appear

Case no. 86/2014
Order made on 24 October 2014

A and others
vs.
The Ministry of Defence
Intervener for A and others: International Rehabilitation Council for Torture Victims (IRCT)

The cases had been brought by 23 Iraqis against the Ministry of Defence for, among other things, compensation for injury to their feelings as a result of the Danish forces' behaviour in connection with a military operation in 2004 during the Iraq War. The question to be considered by the Supreme Court was whether the High Court's dismissal of the cases due to the plaintiffs' failure to appear at a pre-trial hearing was justified.

The 23 plaintiffs had applied for free legal aid for the case, but their application had been refused. Following the refusal, the plaintiffs' lawyer continued corresponding in the case regarding, among other things, setting of a date for a pre-trial hearing.

Two days before the hearing, the lawyer informed the court that the plaintiffs were not able to appear at the hearing. The lawyer failed to give a clear answer to the High Court's question of whether he had resigned from the cases.

Neither the lawyer nor the plaintiffs appeared at the pre-trial hearing, for which reason the High Court dismissed the cases.

Based on the lawyer's communication with the High Court prior to the hearing, the Supreme Court considered that the lawyer had not resigned from the cases, and hence, that he still represented the clients when he failed to appear at the hearing.

The Supreme Court held that the lawyer's failure to appear at the hearing could not be regarded as a lawful excuse, but had to be regarded as a conscious choice. Consequently, there was no basis for not dismissing the cases.

Also, since the lawyer still represented the plaintiffs at the time of the hearing, there was no basis for ordering the plaintiffs to be represented by counsel and assigning counsel to them.

The Supreme Court thus affirmed the High Court's dismissal of the case.