The case of Decadent Vapours Ltd -v- Bevan et al (Judge Jarman Q.C. Cardiff District Registry, 18th February 2014) was reported on Lawtel this morning. It provides another warning of the dangers involved in not complying with court orders on time.
The court made directions in December 2013 that unless the claimant filed a pre-trial checklist and paid the hearing fee and application fee by 4 p.m on 19th December 2013 the claim would be struck out. The pre-trial checklist was served, the fee was not paid until the 9th January 2014.
The solicitor for the claimant telephoned the court on the 18th December and was told by a member of court staff that the cheque could follow the filing of the pre-trial checklist. He drafted the letter sending out the cheque. At a telephone hearing on 7th January 2014 it became clear that the cheque had not been received and the action struck out. The fee was paid, by card, on the 9th January 2014 and an application for relief was made.
RELIEF FROM SANCTIONS REFUSED
The judge found that:
- The breach was not trivial.
- It was not reasonable for the claimant’s solicitors to attempt to rely upon the conversations with court staff.
THE SOLICITOR COULD NOT RELY UPON CONVERSATIONS WITH THE COURT STAFF
The judge rejected any suggestion that the breach was trivial because the solicitor relied on court staff.
- The solicitor is an officer of the court.
- He did not know who he spoke to, nor the grade of staff.
- He was aware of a very clear order that unless payment was made by 4.00 pm the action was struck out.
- It was not acceptable for him to rely on what he may, or may not, have been told by court staff when it comes to compliance with a judicial order made in proceedings.
- The solicitor had made a conscious decision not to take steps which would have ensured that the order had been complied with.
- The solicitor took a risk by putting the cheque in the post six days before the Christmas period.
MAKING A CONSCIOUS DECISION NOT TO COMPLY
The solicitor’s witness statement in support of the application for relief from sanctions actually stated that he believed it would be disproportional to ask a fee earner from the Bristol office of the firm to travel to Cardiff and made a conscious decision that this need not be done.
- In retrospect this was clearly unwise.
- It need not be a fee earner. Delivery of a cheque to a court requires relatively few qualifications.
- This statement is hardly ever (indeed never) going to impress a judge on an application for relief from sanctions
SUMMARY: PAY COURT FEES ON TIME, DON’T RELY ON COURT STAFF AND, IF NECESSARY, PUT YOUR STAFF ON A TRAIN
- A peremptory order is extremely dangerous and should be treated as such. Compliance well ahead of the deadline is the only safe course of action.
- It is unwise (to put it mildly) to rely on statements made by court staff over the telephone to attempt to justify non-compliance with a court order.
- It is difficult to envisage circumstances where it would be “disproportional” to take every possible step to ensure that fees and documents are received on time. The very, very, real danger lies in the disproportional consequences of not complying.