Keen Phillips (A Firm) v Field

A sanction imposed for failure to comply with a court order remains effective unless the court exercises its general case-management powers or grants relief on an application. Rule 3.8 of the Civil Procedure Rules does not deprive the court of jurisdiction to extend time, grant relief or act on its own initiative merely because the defaulting party has made no formal application.

Whether an application is before the court is determined practically. An oral application may suffice, and the court may dispense with an application notice. Rule 7.6 is different because its restrictive language expressly limits the general power to extend time.

An accountancy firm obtained permission to appeal and summary judgment for unpaid fees after its transcript of the district judge’s judgment was filed one day outside a court-ordered deadline. The delay was attributable to the transcribers and caused no prejudice. The county court judge extended time during the hearing despite the absence of a formal application for relief from sanctions.

The defendant appealed on the sole permitted ground that the judge lacked jurisdiction to grant permission, hear the appeal or allow it. The central issue was whether Rule 3.8 prevented the court from exercising its general powers to extend time and act on its own initiative unless the defaulting party first applied for relief.

1. Appeal dismissed. Rule 3.8(1) is subject to the court’s general case-management powers under Rules 3.1(2)(a) and 3.3(1). It does not deprive the court of jurisdiction to extend time or otherwise grant relief from a sanction on its own initiative merely because the party in default has not first made an application. A contrary construction would conflict with the overriding objective of dealing with cases justly.

2. The words “has effect” in Rule 3.8 mean that a sanction remains effective in the absence of an exercise of the court’s general case-management powers. It also remains effective until relief is granted on an application if the court has not acted of its own initiative. The rule therefore preserves the sanction pending relief; it does not impose a jurisdictional precondition requiring an application in every case.

3. Vinos v Marks & Spencer plc [2001] 3 All ER 784 did not support the proposed analogy. Rule 7.6(3) states that the court may make the relevant order “only if” its conditions are satisfied. That wording expressly restricts the general power to extend time. Rule 3.8 contains materially different language.

4. In any event, an application for an extension of time was before the county court judge on the facts. Counsel was about to address the matter when the judge invited the opposing submissions and reserved counsel’s opportunity to reply. The judge heard and rejected the objection before extending time. Since the court could dispense with an application notice under paragraph 3(4) of the Practice Direction supplementing Part 23, it would have been artificial to hold that no application had been made.

Moore-Bick LJ agreed entirely with the judgment of Jonathan Parker LJ. The order granting permission to appeal and summary judgment therefore remained undisturbed.

1. Court of Appeal (Civil Division): By [2006] EWCA Civ 1524, dismissed the defendant’s appeal and upheld the county court judge’s exercise of jurisdiction.
2. Guildford County Court: HHJ Reid QC extended time, granted the claimant permission to appeal, allowed its appeal from the district judge and entered summary judgment for £4,218.25 plus interest.
3. County Court: District Judge Letts dismissed the claimant’s application for summary judgment.