Following on from my last blog about CPR 3.9 and a failed application for relief from sanctions i have now received a note of the judgment. I dont think it needs any further input from me as it speaks for itself.
This is an application by C for relief from sanction and therefore I should start be setting out what the sanction is and when it was imposed. The sanction comes from an order by DJ Davis on 9 June and drawn on 10 June 2015. To put it in context, a little earlier, on the 5 May 2015 he conducted a hearing of the D’s application to set aside a default judgment in this case at p133. He adjourned that hearing and ordered C to file a copy of any statement of payment toward the account in Sept 2012.
Everyone knows why that issue was relevant.
C applied to extend that time, and it was when dealing with that application that DJ Davis made his order of 10th June 2015 that unless C complies with para 2 of the previous Order by 10 July the claim will be struck out.
He had granted C’s application for more time, but added the unless element.
Come 21 July the C had not complied with para 2 of earlier Order, nor did C make a further application for an extension of time. The appropriate action for C would have been to make the application then.
Rather, matters in mid-July were concerned with set aside of the Default Judgment. On 22 July 2015 C’s solicitors wrote to Court stating that they would not be in attendance and would not oppose the set aside. They then put more information in the letter and then asked for D to be ordered to file amended Defences.
There is nothing in that letter in respect of the Order resulting in the strike out on the day after the hearing.
The C’s solicitors overlooked that fact, or they would have applied for relief from sanctions to ensure that they were not struck out. Instead they concentrated on the set-aside application.
In any event, the Judge proceeded with that hearing and recorded that C had failed to comply with the Order (as varied) requiring the filing of statement by 21 July 2015 and he therefore ordered that the Claim stand struck out, confirming the previous order AND that Default Judgment be set aside.
The set-aside was not considered as the Claim stood struck out, therefore it was the appropriate Order for the Judge to make.
So it is the 10 June Order with 21 July 2015 confirmation Order in which this application for relief was sought.
The Original Application at p.160 is dated 4 Feb 2016, which is over 6 months after the default and strike out. The time delay is significant in my judgment.
It was only with that application that a List – and I think ‘a List’ is as a good a way as any referring to this document – which could be described as potentially complying with the Order, was filed. I suppose the Order of Judge Davis could be considered a bit ambiguous, as it could be referring to a witness statement, or a bank statement. But it is quite clear from C’s original application and amended witness statements that the original List is said to be in compliance.
But here it is more than 6 months after being Ordered to be filed – actually several extra months after it is Ordered to be filed – and more than 6 months after the strike out date.
I have no doubt it is serious, and that is accepted by. So 1st stage of Denton is disposed of.
2nd stage of Denton: The w/s of Dannielle Armstrong supporting the amended application, and incidentally refers to the List that was attached to the Original Application, I take the view that it can be incorporated into her witness statement, and it was ordered by me that it be amended.
Anyway, so she refers to that List. But on the subject of Denton, at para 18 she gives the reasons for delay. The reason for non-compliance, being that “documentation received by my firm/firm’s client in October 2015 which shows payment to the account. However, it was not in a format that could be put before the Court…” (DJ Hebbelthwaite read out the remainder of paragraph 18 (ii) of that witness statement).
Well in my judgement that is not only not a good reason for failure to comply, it is a completely unacceptable reason. It seems to me that Judge Davis’ order still hasn’t been complied with. But even if the List with the original application did comply with the Order, the reason given for the delay is completely unacceptable. If it was available in October of last year but not in a format which could be submitted to the Court, they should have noticed the calendar and filed it anyway with some sort of explanation. If they had one that then they wouldn’t have had this inordinate delay.
On the subject of the List, there is nothing that authenticates it. It could be a list simply drawn up by the current C, and probably is, because it includes costs paid out to Restons, their solicitors. It says on the first Application that payments were all made to C, but this is corrected in 2nd application by referring to payments to Lloyds TSB.
I also note – and some of this is right up to recent times – there have been many letters from D’s solicitors asking for evidence from Lloyds TSB and where they come from. And all those have gone unanswered.
Accordingly, I have no hesitation in coming to the conclusion that there is no good reason for the delay. And on the 2nd stage of Denton C fails miserably.
On the third stage, I must consider all the circumstances of the case. The actual wording of CPR 3.9 is: (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need-
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.
In terms of the circumstances, we have a different approach from the two parties. Whilst stating that he does not invite me to deal with the merits of the claim, Mr Berriman does ask me to take into account the fact – as he would see it – that the D misled the court with their application to set aside the judgement. And in particular with regards to their statement that they haven’t made any payments.
I don’t actually think that this isn’t considering the merits of the case. For his part, Mr Brennan simply says the merits are irrelevant, and cites authority on that point, and normally in these applications they won’t be taken into account, and clear authority for that, including from the Supreme Court.
What Mr Berriman is saying is that the Court should put the strike out into the context it was made, in the context of D’s application to set aside, and it was indeed, at the hearing of that application when the C must have said to Judge Davis that D is saying no payments were made, but they did make those payments to us. And Judge Davis gave them time to prove the point. And time that was extended, and with a failure to meet the new deadline, and then went on for a further 6 months.
So it is true that the unless Order would not have been made had the application by D not been made. But there was no finding on that application on its merits, and the C asserts that what they eventually produced misled the court.
However, the statement on its own, alongside the witness statement filed with the latest amended application, still don’t show, in my judgment, what the evidence is for writing out a List of £1 payments being made.
It is clearly a self-produced document made by C.
Whilst I accept the sanction arose from an Order made in the context of an application to set aside, I don’t find that – when you look at the case overall – that this is a point in favour of the C. I put that point inelegantly, but I hope it is clear to the parties what I am saying.
I have also considered by reference to the other case in relation to Halifax. I fully accept that it was envisaged that the cases would be dealt with together, and early on there are some similar points, including producing evidence to counter the D’s assertion that they didn’t make the £1 payments.
Clearly the two were separated, and the other case the default judgment was set aside and a small claim case went ahead. On 8 December 2015 – and I have a transcript of the judgement before me – the claim had been struck out in July of 2015 in this case, and so the Halifax case was going ahead on its own.
I don’t know what material Judge Singleton saw, but I can see the basis on which he found that D’s had made the £1 payments and thereby extending period of limitation.
However, it’s too big a step that I should be, as it were, that the implication in this case would be a similar outcome in this trial, particularly in light of what I have found in the reasons for the failure to follow the Order and the inordinate delay.
So whilst I can understand why my attention is drawn to the Halifax claim, it doesn’t weigh in favour of relief from sanctions that is before me today.
Accordingly, much of the material on the merits of the case – and I appreciate that much of this was submitted by D by way of back up – but much of that material is not of relevance before me for this application.
I can summarise, therefore, having expanded in more detail, I can summarise the reason why I am going to dismiss this application.
This is a serious breach of a court order. No good reason had been advanced why there was a breach, why there was no timely application before the strike out kicked in, why C’s solicitors forgot about it when writing to the Court on 20 July 2015, and why thereafter nothing happens for 6 and a bit months. An application which wasn’t in proper CPR 3.9 form, and had to be Ordered to be amended, so we are now dealing with it even further down the line. No good reason given for failure and there has been inordinate delay
Taking into account all circumstances of case, I am not persuaded by the material before me, including this List which doesn’t prove anything at all, hasn’t complied with this Court’s order, and doesn’t comply with any standard of proof, that the payments were made by D.
I remind everyone of CPR 3.9 which requires me to deal Justly with the application including the need to deal with the litigation efficiently and at proportionate cost and to enforce compliance with Court orders.
Since last July the D have been under the impression that this claim was over and was not hanging over their heads. They are entitled to finality. In my judgment, it is quite wrong in all the circumstances and in light of delay, to say the case should be reopened. I’m afraid that the C is very much in default in this case. There is no way, and I have no hesitation in dismissing this application for all the reasons given in my judgment.