Richardson v Langtree Group Plc

When an unless order provides for a claim to be struck out for non-compliance, the court must decide whether to enforce the sanction in light of the circumstances existing at the hearing. Relevant considerations include the parties’ intervening conduct, the practical effect of the breach, prejudice, and costs already incurred. Where the party seeking judgment has allowed the proceedings to continue, suffered no material prejudice, and the other party has prepared for trial, the court should refuse to strike out the claim or enter judgment. The Court of Appeal left open questions concerning the construction of Civil Procedure Rules 3.5 because the discretionary issue was decisive.

Langtree obtained judgment against Richardson in Leeds County Court on 12 November 2003 for £19,051 plus £3,000 interest after a trial concerning personal liability under one lease and liability as surety under another. Permission to appeal was refused on the trial merits but granted on whether an earlier disclosure sanction meant that the action had already been struck out. A District Judge had ordered standard disclosure and later directed that the claim would be struck out unless Langtree complied by 1 October 2003. Richardson argued that Langtree had not complied and that judgment should have been entered for him. The trial judge allowed the trial to proceed. The issue before the Court of Appeal was whether that course was legally and procedurally open.

Appeal dismissed. Lord Justice Waller gave the judgment and Sir Charles Mantell agreed.

1. The 31 July 2003 order required standard disclosure by 28 August. The 19 September order provided that the claim would be struck out without further order unless Langtree complied by 1 October. Langtree supplied its disclosure list by that date, sent a signed disclosure list on 6 October, and served witness statements later than originally ordered.
2. The court identified two possible construction issues under Civil Procedure Rules 3.5: whether the 19 September order fell within rule 3.5(1)(a), or was itself an actual strike-out order; and whether rule 3.5 applied only where a party sought judgment with costs. Waller LJ expressed doubt about both points but declined to decide them, since fuller argument would have been required and the appeal could be resolved on the exercise of discretion.
3. At the hearing, Richardson was either applying under rule 3.5 to enter judgment or relying on the earlier order while seeking judgment. Langtree resisted the sanction. Little attention appeared to have been paid to the checklist in rule 3.9(1), including the need for supporting evidence on an application for relief.
4. The decisive circumstances were that Richardson had not returned to court to stop the proceedings, had allowed Langtree to incur the costs of preparing for and attending trial, and suffered no prejudice from the alleged breaches. The delayed disclosure statement caused him no harm and was not itself complained of. Whatever the proper construction of rule 3.5, no judge could properly have entered judgment for Richardson or prevented Langtree from pursuing its claim. The trial was therefore correctly allowed to continue.

• Court of Appeal (Civil Division): In [2004] EWCA Civ 1447, the court dismissed Richardson’s appeal on the disclosure-sanction issue.
• Leeds County Court: His Honour Judge Taylor allowed the trial to proceed and judgment was entered for Langtree on 12 November 2003.