In Biffa Waste Services Ltd –v- Ali Dinler (QBD 10/10/13) Swift J overturned an order granting relief from sanctions.
Biffa was a personal injury case. The claimant failed to file a pre-trial checklist in time or to pay the listing and hearing fees. An unless order was made but the claimant failed to comply. The claimant also served his witness statements 27 days late and failed to attempt to agree the contents of the trial bundle with the defendant. No explanation was given for the delays.
The defendant applied to strike out the claim. The judge declined to strike out the claim but made a costs order against the claimant. The trial was adjourned.
THE DECISION OF SWIFT J
There are a number of points of note:
1. The Jackson reforms introduced a significant change in the court’s attitude to non-compliance.
2. Under CPR 3.9 the court was required to consider the wider issue of court time and resources.
3. Recent judgments had emphasised the need for greater weight to be given to enforcing compliance with court orders.
4. In the current case there had been a flagrant disregard of the court’s orders by the claimant.
5. The delays were very significant and wholly unsatisfactory. The claimant’s witness statements were served a day before the trial. It was entirely foreseeable that the trial would have to be adjourned.
6. The hearing before the judge had been conducted in an informal manner and had failed to consider the principles to be applied in considering relief.
7. The judge did not consider matters such as proportionality and the overriding objective. The judgment showed no balancing of factors.
8. The judge was obliged to have regard to all the circumstances of the case which included the waste of court time and resources.
9. Having regard to the Jackson reforms and taking all relevant matters into account relief should have been refused.
10. The judge erred in the exercise of his discretion and the automatic strike out of the claimant’s case stood.
THE DEFENDANT SUCCEEDED AT THE APPEAL STAGE
This conclusion can come as no great surprise to anyone who has followed civil litigation over the past six months. It does show the importance of the weighing up of relevant factors at first instance. This may be ironical in that one of the reasons CPR 3.9 was amended was to put an end to the need for the judge to go through the checklist.
LINKS TO THE CASE
A summary of the case is available on Lawtel. I am working from that summary and will look at thiscase again once the transcript is available.
- On the issue of the key date for implementation of the new CPR 3.9 seehttps://civillitigationbrief.wordpress.com/2013/08/19/relief-from-sanctions-the-key-date-for-implementation-of-the-new-cpr-3-9/
- On the question of serving witness statements late seehttps://civillitigationbrief.wordpress.com/2013/07/21/serving-witness-statements-late-an-extremely-dangerous-practice/
- On relief from sanctions see https://civillitigationbrief.wordpress.com/2013/09/26/relief-from-sanctions-and-costs-budgeting-the-judgment-in-mitchell-v-news-group-newspapers-in-full/
Discussions of relief from sanction applications can be found at: