NUMEROUS BREACHES DO NOT LEAD TO ACTION BEING STRUCK OUT: COURT OF APPEAL DECISION TODAY

In Commissioner of Police of the Metropolis -v- Abdulle [2015]EWCA Civ 1260 the Court of  Appeal upheld a first instance decision not to strike out a claim because of numerous (and serious) breaches of non-peremptory orders.

“… the behaviour of the Claimants’ solicitors is worthy of real criticism: …at times they appear to have failed to understand the rudimentary requirements of being a litigation solicitor, including their duties to the court and their obligation to comply with rules and orders and promptly so”

“Let me say at once that if I had been the first instance judge I would have accepted Mr Thomas’s submissions. I would have given more weight to the lamentable history of delay in progressing this case, the apparent incompetence of the claimants’ solicitors, and the loss of the trial date. But that is not the question for an appeal court.”

KEY POINTS

  • An action was not struck out for non-payment of fees until the court sent out the notice to that effect.
  • Numerous breaches of non-peremptory court orders could lead to an action being struck out.
  • When considering striking out for breach of court orders the court must consider the issue of proportionality.
  • There are often major difficulties for parties who wish to appeal case management orders.

PRACTICE POINTS

  • Needless to say this case emphasises the importance of complying with the rules. The claimants were, on one view, extremely fortunate to escape striking out.
  • If you are making an application to strike out for breach of non-peremptory orders remember that a court will, at that stage, consider the “proportionality” of the response.  This is not considered in an application for relief from sanctions.

THE CASE

The claimants were seeking damages for alleged unlawful detention and excessive use of force.  The matter had a long procedural history, some of which was due to the actions of the defendant. There were, however, a series of procedural errors by the claimant’s solicitor.

  • The claimant took 14 months to arrange a CMC.
  • The claimant then failed to inform the defendant of that date.
  • The  court did not receive  a pre-trial checklist or listing questionnaire from the claimant (although the claimant said it had been sent).
  • The listing fee was not paid.
  • Trial bundles were not prepared.
  • The court did not send out a notice in relation to non-payment.
  • On the first day of the trial window, the judge held that the matter was not struck out and the trial date was vacated. The claimant was ordered to pay costs of £11.500.

THE APPLICATION TO STRIKE OUT

Following the finding that the action was not struck out automatically the defendant made an application to strike out. Lord Justice Lewison, observed:-

The Commissioner issued such an application on 13 June 2014. The failures relied on were failing to (i) pay the court fee in breach of paragraphs 2.1-2.3 of schedule 1 to the Civil Proceedings Fees Order 2008 and the Queen’s Bench Listing Officers’ Notice dated 18 February 2014; (ii) file a pre-trial checklist, in breach of Master Cook’s Order of 4 June 2013, and the Queen’s Bench Listing Officers Notice dated 18 February 2014; and (iii) prepare trial bundles in breach of CPR rule39.5 and the Order of Master Cook of 4 June 2013.”

THE DECISION AT FIRST INSTANCE: ACTION  NOT STRUCK OUT BECAUSE OF NUMEROUS BREACHES

The judge at first instance found that the breaches were serious but refused to strike out the case. The situation is set out in the Judgment of Lewison LJ

  1. It was that application that came before Hickinbottom J on 30 October 2014. The judge’s jurisdiction to strike out the claim arose under CPR Part 3.4 (2) (c) which provides:
“(2) The court may strike out a statement of case if it appears to the court –…
(c) that there has been a failure to comply with a rule, practice direction or court order.”
  1. Clearly the word “may” shows that the court is exercising a discretion. It was rightly common ground before the judge (and was before us) that the exercise of this discretion differs from the exercise of the discretion to grant relief against sanctions under CPR 3.9. There are at least two reasons for that. First, in a case under CPR 3.9 the sanction has already been imposed, whereas in a case under CPR 3.4 (2) it has yet to be imposed. Second, and leading on from the first point, the proportionality of the sanction is not (or ought not to be) in issue in a case under CPR 3.9 because proportionality will have been considered at the stage when the sanction was imposed. By contrast in a case under CPR 3.4 (2) proportionality of the sanction is likely to loom large in the argument: Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607, [2015] Costs LO 157 at [44].
  2. The judge, while recognising the differences between an application under CPR 3.9 and an application under CPR 3.4 (2), accepted Mr Thomas’s invitation to consider the matter by reference to the decision of this court in Denton v T H White Limited [2004] EWCA Civ 906, [2014] 1 WLR 3926. In that case this court laid down the approach to be followed in deciding whether or not to grant relief against sanctions. The majority of the court (Lord Dyson MR and Vos LJ) said at [24] that a judge should approach the question in three stages:
i) Identify and assess the seriousness of the failure to comply;

ii) Consider why the default occurred;

iii) Evaluate all the circumstances of the case so as to enable the court to deal justly with the application, including the need for litigation to be conducted efficiently and the need to enforce compliance with rules, practice directions and orders.

  1. The judge rejected the argument advanced on behalf of the claimants that the court’s failure to give notice under CPR 3.7 had, in effect, deprived the claimants of the opportunity to pay the fee. He said at [32]:
“… that simply underscores their ability to pay, and makes the more blameworthy their failure to pay earlier. The requirement to pay court fees is mandatory, not aspirational. Fees are required to be paid when they are due, and not only after the relevant party receives from the court the equivalent of a red demand for money from a utilities company.”
  1. He also rejected the argument that there was a good reason for the non-payment of the fee. He regarded the non-payment of the fee as the reason why the trial date was lost. Thus he concluded at [37]:
“…the failure to pay the fee was a serious breach by the Claimants, with particularly serious procedural consequences, namely that the trial date was inevitably lost.”
  1. In accordance with Denton the judge then went on to consider “all the circumstances”. The first matter that he took into account was the claimants’ conduct of the case, of which he had already been very critical. He then accepted that although there was CCTV evidence which went to some issues in the case, there was other evidence which would have to come from police witnesses whose memories would have faded. (I interpose to say that, as Moore-Bick LJ suggested in argument, it seems probable that police witnesses would have a near contemporaneous note of the events of that night which they would have routinely recorded in their notebooks and from which their memories could be refreshed). The judge then took into account the effect of the delay on the claimants themselves, one of whom had a psychiatric condition. The last specific factor that he took into account was the strength of the underlying claim which he considered at [41]. That was perhaps an unfortunate phrase to use in the light of the decision of the Supreme Court in Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] UKSC 64, [2014] 1 WLR 4495 at [29] but what the judge clearly meant was that he could not say that the claim was bound to fail or bound to succeed. Mr Thomas did not argue that he was wrong to do so.
  2. The judge then came to his overall conclusion which he expressed as follows:
“[42] Whilst I do not consider that I am greatly helped by any reference to other cases which necessarily turn upon their own and very different facts, I do also have to take into account the need to enforce the rules of the court and to allocate only proportionate resources to any claim, as now underscored by the overriding objective and in cases such as Denton.
[43] On its merits, I have not found this an easy application. In my judgment, the behaviour of the Claimants’ solicitors is worthy of real criticism: I agree with Mr Thomas that at times they appear to have failed to understand the rudimentary requirements of being a litigation solicitor, including their duties to the court and their obligation to comply with rules and orders and promptly so. On the other hand, this case is now all but ready for trial; and, as I have indicated, this case is not an insubstantial one. The assessment of the Claimants’ solicitor – no doubt rough and ready, and no doubt contentious – is that the claim might be worth in excess of £400,000. In any event, in the circumstances of the incident that led to this action, it is clear that the substantive claim is a serious one.
[44] Although I have found this to be a fine judgment, in my view the balance is in favour of the case not being struck out now but being allowed to proceed, albeit on terms.”

THE COURT OF APPEAL UPHELD THE DECISION OF THE JUDGE: THE ACTION WAS NOT STRUCK OUT (ALTHOUGH THE COURT ITSELF WOULD HAVE EXERCISED ITS DISCRETION DIFFERENTLY)

  1. Mr Thomas submitted that the judge was wrong in his appreciation that the case was “all but ready for trial”; but I do not consider that we are in a position to disagree with the judge on that point. Moreover, even if there was more to be done the judge gave further directions for trial which could all have been backed by “unless” orders.
  2. Mr Thomas’ main point was, as I have already said, that the loss of the trial date was particularly serious and that, where the loss had been caused by the claimants’ own default without good reason, those factors outweighed the countervailing reasons that the judge considered tipped the balance into allowing the claim to proceed on terms. If the general delay in progressing the case is added to the relevant factors, it can be seen that the judge’s decision was outside the range of reasonable case management decisions. Mr Thomas posed the question: if a case is not struck out on facts like these, when will it ever be?
  3. Let me say at once that if I had been the first instance judge I would have accepted Mr Thomas’s submissions. I would have given more weight to the lamentable history of delay in progressing this case, the apparent incompetence of the claimants’ solicitors, and the loss of the trial date. But that is not the question for an appeal court.
  4. Mr Thomas’s submissions did not include a submission that the judge overlooked any relevant factor, or that he took into account irrelevant factors. Nor did he suggest that the judge misdirected himself in law. Rather, his submissions were directed to the weight that the judge attributed to the various factors that he did take into account in exercising his discretion. That is not a promising start to an attack on an exercise of discretion. What it amounts to is a submission that the judge’s decision was perverse.
  5. In Mitchell v News Group Newspapers Ltd [[2013] EWCA Civ 1537, [2014] 1 WLR 795 at [52] this court said:
“We start by reiterating a point that has been made before, namely that this court will not lightly interfere with a case management decision. In Mannion v Ginty [2012] EWCA Civ 1667 at [18] Lewison LJ said: “it has been said more than once in this court, it is vital for the Court of Appeal to uphold robust fair case management decisions made by first instance judges.””
  1. The first instance judge’s decision in that case was to refuse relief against sanctions and her refusal was upheld by this court. But the same approach applies equally to decisions by first instance judges to grant relief against sanctions. In Chartwell Estate Agents Ltd v Fergies Properties SA [2014] EWCA Civ 506, [2014] 3 Costs LR 588 Davis LJ said at [63]:
“… the enjoinder that the Court of Appeal will not lightly interfere with a case management decision and will support robust and fair case management decisions should not be taken as applying, when CPR 3.9 is in point, only to decisions where relief from sanction has been refused. It does not. It likewise applies to robust and fair case management decisions where relief from sanction has been granted.”
  1. In my judgment the same approach applies to decisions by first instance judges to strike out, or to decline to strike out, claims under CPR 3.4 (2) (c). In a case in which, as the judge himself said, the balance was a “fine” one, an appeal court should respect the balance struck by the first instance judge. As I have said I would have found that the balance tipped the other way; but that is precisely because in cases where the balance is a fine one reasonable people can disagree. It is impossible to characterise the judge’s decision as perverse.
  2. In Chartwell Davis LJ also said that if parties understand the approach that this court will take to discretionary interlocutory decisions of first instance judges then satellite appeals should be avoided. I echo that hope. It is a depressing fact that this satellite appeal has added a further year to the overall delay in bringing this claim to trial.I

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