Welsh v Parnianzadeh

A court considering strike-out for procedural non-compliance, or relief from a strike-out sanction, must exercise its discretion in a measured and proportionate way. It must consider the relevant checklist or analogous factors, including default, delay, prejudice, the possibility of a fair trial, the effect on each party and the interests of justice. An informal witness statement may constitute an application for relief. Solicitors’ failures, the claimant’s lack of personal fault, the opposing party’s conduct and the severe consequence of losing the claim may cumulatively justify continuation, with conditions addressing delay. A contradictory order that dismisses an appeal yet directs continuation requires the order to be considered as a whole. Where the lower reasoning is defective, the appellate court may re-determine the sanction decision.

The claimant alleged that she fell on a wet and defective floor at the defendant’s shop on 13 February 2000. Proceedings were issued on 30 January 2003. After repeated procedural defaults, District Judge Morris struck out the claim on 19 January 2004 for failure to comply with an order requiring amended pleadings, medical evidence and a schedule of loss.

Her Honour Judge Dangor dismissed the appeal, but directed that the claim continue subject to case-management measures, including reduced interest. The defendant appealed to the Court of Appeal, arguing that the order was contradictory and that the judge had no power to continue the claim after dismissing the appeal. The central issue was the meaning and effect of that order and, if necessary, the proper disposal of the strike-out appeal.

Appeal allowed. Lord Justice Mance gave the first judgment, with which Lord Justice Peter Gibson agreed. The strike-out was set aside and there was no order as to costs.

1. Her Honour Judge Dangor had no power to dismiss an appeal from an order striking out a claim and then give directions having the opposite effect by providing for the claim’s continuation. The order had to be viewed as a whole, but its contradictory terms and the judge’s confused approach made its intention and effect unreliable. The judge had also failed to address properly the discretionary and proportionality issues.
2. An application for relief under rule 3.9 of the Civil Procedure Rules need not be formal. The claimant’s witness statement amounted to an application for relief. If the matter was instead treated as an application to strike out under rule 3.4, the court still had a discretion involving substantially similar considerations.
3. The discretion had to be exercised in a measured and proportionate way. Relevant matters included the nature and extent of the default, delay and promptness, intention, explanation, compliance with other orders, prejudice, trial timing, the effect of granting or refusing relief, whether a fair trial remained possible and the interests of justice. The factors were not to be counted mechanically.
4. Although the claimant’s defaults and lack of explanation were serious, they were principally attributable to her solicitors and were not deliberate flouting of the court. The defendant’s earlier uncooperative conduct, the absence of specific prejudice, the continued possibility of a fair trial and the severe consequence of losing the claim outweighed the defaults cumulatively. The Court of Appeal therefore re-determined the appeal, set aside the strike-out and permitted the claim to continue on broadly similar terms to those ordered below, subject to costs and any appropriate variation of the conditions.

It was additionally observed that the discretion under the rules was sufficient to give effect to article 6 of the European Convention on Human Rights, making separate reliance on that article ordinarily unnecessary.

• Court of Appeal (Civil Division): [2004] EWCA Civ 1832. Appeal allowed. The strike-out was set aside and the claim was permitted to continue on broadly similar terms to those directed below.
• Willesden County Court, Her Honour Judge Dangor: Appeal from District Judge Morris’s strike-out order dismissed in the formal wording of the judgment, but directions were given for the claim to continue with case-management conditions.
• Willesden County Court, District Judge Morris: Claim struck out on 19 January 2004 for non-compliance with the order made by District Judge Cohen.