RELIEF FROM SANCTIONS REFUSED: NO PERMISSION TO SERVE RESPONDENT’S NOTICE LATE

In Pipe -v- Spicerhaart Estate Agents Ltd [2016] EWHC 61 QB Mr Justice Sweeney refused permission to serve a Respondent’s notice late.

“Against the background that this is a small claims case, the conduct of the Respondent in relation to the Respondent’s Notice (and also the provision of their skeleton argument at or around the last possible moment) has, in my view, prevented the parties from conducting the litigation at proportionate cost.”

KEY POINTS

  • The respondent was not given permission to serve a respondent’s notice late.
  • The respondent had delayed in filing a skeleton argument and failed to engage with the claimant.
  • The respondent was required to remove, from its skeleton, all matters that effectively constituted a respondent’s notice.

 

THE CASE

  • The appellant was appealing a decision on the Small Claims Track. The matter had been heard by a Circuit Judge and that judge had given permission to appeal.
  • The respondent’s notice should have been served within 14 days of the Notice of Appeal.  That was not done
  • The appeal was listed for the 17th or 18th December 2015.
  • The respondent served a Notice after close of business on Friday the 11th December 2015.
  • The judge heard the respondent’s application for relief from sanctions on the 18th December 2015, the date listed for the appeal.

THE APPLICATION FOR RELIEF FROM SANCTIONS

The respondent conceded that it could not meet the 1st and 2nd stage of the Denton test.

THE JUDGMENT ON THE SANCTIONS ISSUE

The Merits
  1. Whilst the Respondent goes only so far as to concede that it “cannot fully satisfy” stages 1 & 2 of the Denton test, I have no doubt that the failure to file, or to seek to file, the Respondent’s Notice until 14 December 2015 was a serious or significant breach, and that there was no good reason whatsoever for it.
  2. Of course, that does not mean that the application for relief from sanctions must automatically fail. Rather, I must consider all the circumstances of the case so as to enable me to deal justly with the application – including the need for litigation to be conducted efficiently and at proportionate cost and the need to enforce compliance with rules, practice directions, and orders.
  3. Against the background that this is a small claims case, the conduct of the Respondent in relation to the Respondent’s Notice (and also the provision of their skeleton argument at or around the last possible moment) has, in my view, prevented the parties from conducting the litigation at proportionate cost. Equally, this is the second time in the case that the Respondent has been in breach – albeit that it eventually obtained relief in relation to the first breach.
  4. Looking at all the circumstances it is clear that, having been granted permission to appeal, the Appellant repeatedly sought to engage with the Respondent, and that the Respondent repeatedly failed to do so until it was too late.
  5. Equally, whilst I accept Miss Kumar’s assurance that there is no question of the Respondent seeking to challenge the Judge’s findings of fact in any way, I reject her submission that the consequences of granting the application would be minimal – albeit that the Foxtons case features in the judgment. Nor, in any event, do I see any arguable merit in the point sought to be relied upon.
  6. Accordingly, I conclude that the way to deal justly with the application is to refuse it. In the result, the Respondent may not rely upon the Respondent’s Notice as drafted, nor upon any other matter that should have been included in it – in particular the assertion in paragraph 35 of the Respondent’s skeleton argument that the judge was wrong to have accepted the specified aspect of the Appellant’s evidence.
  7. It is clearly important, in advance of the hearing of the Appeal, and if necessary by further ruling, to specifically identify all matters in the Respondent’s skeleton argument that should have been in the Respondent’s Notice and upon which the Respondent is thus now debarred from relying. In written submissions following the provision of this judgment in draft to the parties, the Appellant argues that the Respondent should not be able to rely on paragraphs 6-8, 13-15, 19, 35 (now dealt with above) and 43-48 of its skeleton argument. On behalf of the Respondent it is indicated that the skeleton argument will be amended, but not to the extent sought.
  8. Against that background, I require the Respondent to serve its proposed amended skeleton argument by 4pm on 25 January 2016. I will then rule on what, if any, aspects of its content should have been in the Respondent’s Notice (and upon which, therefore, the Respondent cannot rely).

 

RELATED POSTS

Most of the cases relating to relief from sanctions are catalogued in the Sanctions: Case Watch section of this blog.

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