Windmill Racing Stables v Lewis

A clear and unequivocal disclosure order must be obeyed unless it is set aside or varied. Blatant, unexcused non-compliance may activate an unless order debarring a party from resisting an appeal. Where a claim was tried on a false legal basis but could be advanced properly by amendment, the just disposal may be to allow the appeal, order a retrial and permit amendment without a limitation objection. A retrial should proceed on a clean slate. Orders founded on the judgment under appeal may likewise require setting aside.

The claimant, Mr Stephen Barnett, trading as Windmill Racing Stables, resisted an appeal by Gerald Lewis from an order made by Mr Recorder Ross-Martin in Wandsworth County Court on 7 March. The Court of Appeal first considered the claimant’s failure to disclose documents concerning separate litigation, despite an order made on 15 June 2004. It also considered an application to adduce further evidence and whether a charging order should remain in place pending the appeal.

The central issues were whether the claimant should be debarred from resisting the appeal and, if the appeal succeeded, whether the claim should be retried and amended.

1. Debarment. The disclosure order was clear and unequivocal. The claimant accepted that he had not complied and offered no justifiable excuse. His belief that an earlier order had been discharged did not answer the later order, which had been reinstated for stated reasons. The unless order was therefore made effective, and the claimant was debarred from resisting the appeal.
2. Appeal and retrial. The case advanced in the County Court rested on a false basis in law. The error made the appeal succeed. However, the claim was capable of being redeemed by amendment. Justice required remission for a retrial on a legally sound basis, together with permission to amend the pleadings without any objection based on delay or limitation. The claimant was given six weeks to amend, with a case management conference to follow as soon as practicable.
3. Conduct of the retrial. The original judgment could not be relied on at the retrial, save possibly to establish a particular element of testimony. The parties were to proceed with a clean slate. The Court declined to require money to be paid into court, since that condition would frustrate the purpose of allowing the appeal.
4. Consequential orders. The County Court order of 7 March was set aside and the matter was remitted for retrial. The related charging and possession orders in the Chancery Division, founded on the judgment which had been set aside, were also set aside. The fresh-evidence applications were dismissed. Costs of the earlier County Court and Chancery proceedings were to be costs in the new trial.

• Court of Appeal (Civil Division): On 17 November 2004, allowed the appeal, set aside the County Court order, permitted amendment without a limitation objection, and remitted the claim for retrial.
• Wandsworth County Court: The order of Mr Recorder Ross-Martin dated 7 March was set aside.