Where a party fails to comply with a court deadline, if that failure means the set trial date is lost, there is a strong chance that the case will be struck out and no relief from sanctions will be given.
Oak Cash and Carry Ltd (‘the Defendant') failed to file its listing questionnaire by the specified date in the Court directions; it also failed to file it correctly in the two week extension given by the Court.
Due to this British Gas Trading Ltd (‘the Claimant’) obtained a default judgment.
The Defendant successfully obtained for relief from sanctions and the judge set aside the Claimant’s default judgment.
The Claimant appealed on two grounds:
1) The judge had misapplied the Civil Procedure Rule covering relief from sanctions; and
2) The judge should not have set aside the judgment as the Defendant did not make an application for this.
The appeal judge gave judgment for the Claimant as follows:
Ground 1 - taking each of the three aspects to which the court must have regard to grant relief from sanctions:
1. “Identify and assess the seriousness and significance of the failure to comply”
The failure to comply here was serious and significant as the trial date was lost due to the Defendant’s failure to submit the questionnaire on time, despite being given an extension.
2. “Why the default occurred”
Whilst the court was sympathetic that the Defendant’s instructed solicitor had personal issues, the facts showed that he did nothing regarding the questionnaire until the first deadline had passed and then he failed to give the job to one of the other solicitors in his practice with the relevant experience.
3. “Evaluate all the circumstances of the case to enable the court to deal justly with the application”
Whilst not the most important document for litigation, the failure to submit the listing questionnaire on time meant that the trial date was lost. The judge considered the likelihood that the Defendant would sue their solicitor if relief was not given but the key issue in this case was that the trial date was lost due to that solicitor’s failure.
Ground 2 - whilst a judge may feel that it is appropriate for a judgment to be set aside, a judge should not do so without an application being made.
The ultimate outcome, therefore, was that due to an administrative failing on the part of Oak Cash & Carry’s solicitor, British Gas got a “knock out” win without the expense of a full trial (although they will have incurred costs in preparation for trial, which, under normal rules, will be recoverable by British Gas from Oak – the Court’s comments on costs are awaited).
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These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.