Forrester Ketley & Co v Brent

A court may require a party to replead an excessively long and unclear defence and counterclaim in a single, concise document, supported by a conditional strike-out order. An appellate court should be slow to interfere with such a case-management decision where it falls within the judge’s discretion and is justified by the procedural history. An appeal may also be dismissed as pointless where an independently applicable condition of the order remains unsatisfied. An extended civil restraint order may be made where repeated applications, appeals, attempted joinder of numerous parties and satellite litigation demonstrate that protection of another party and the courts is necessary.

Forrester Ketley & Co brought proceedings against David Brent for professional fees relating to patent work. Mr Brent defended the claim and brought counterclaims for alleged overpayments and negligence, also relying on those counterclaims by way of set-off.

Jacob J ordered Mr Brent to provide a full, clear and concise re-amended defence and counterclaim replacing eight existing documents, and to comply with an outstanding costs order. He failed to comply, and Laddie J struck out the defence and counterclaim. Permission to appeal was subsequently granted on a limited issue concerning the form of Jacob J’s order. The appeal also involved the respondent’s application for an extended civil restraint order.

1. Appeal and adjournment. The court refused Mr Brent’s application to adjourn the hearing on grounds of stress and dismissed the appeal. The medical material did not justify an adjournment, particularly in light of the history of previous applications and the prejudice caused by further delay.
2. Case-management discretion. Jacob J was entitled to require the defendant to replace more than 100 pages contained in eight documents with one full, clear and concise statement. The defence and counterclaim were inextricably linked because the counterclaims were relied on both as independent claims and as set-offs. It was therefore logical and defensible to make both liable to be struck out if the required repleading was not provided. The conditional strike-out order gave the case-management direction effective force and fell well within the judge’s discretion. The Court of Appeal should in principle be very slow to interfere with that decision.
3. Alternative ground. The appeal was in any event pointless because Mr Brent had not complied with the separate requirement to pay £1,250 under paragraph 2(b) of Jacob J’s order, and permission to appeal against that requirement had not been given. The appropriate course after the strike-out would have been to apply for reinstatement on the basis of compliance, or imminent compliance, rather than appeal.
4. Extended civil restraint order. The respondent’s application was granted. The history of repeated applications and appeals, attempted joinder of the Crown, judges and others, and satellite proceedings seeking criminal sanctions demonstrated a clear need to protect the respondent and the courts. Pumfrey J was nominated as the judge to whom any further applications must be made. Mr Brent was given 14 days after receipt of the judgment to make written submissions seeking discharge of the order.
5. Mr Brent was ordered to pay the costs of the applications and appeal, summarily assessed at £18,400.

• Court of Appeal (Civil Division): appeal from decisions of Jacob J and Laddie J in the High Court, Chancery Division, dismissed. The application for an extended civil restraint order was granted, with liberty to apply in writing within 14 days.
• High Court, Chancery Division: Jacob J ordered a re-amended defence and counterclaim and compliance with an outstanding costs order, failing which the defence and counterclaim would be struck out. Laddie J subsequently struck them out after non-compliance.