Seven v Gossage & Ors

A dismissal for failure to comply with an unless order should not stand where the court has failed to consider whether the step relied upon would have complied with the order and why it was not completed. The appellate court may set aside the dismissal while preserving the unless order and allowing a short period for an on-notice application to show cause. Applications for injunctions should ordinarily be made in the High Court, supported by evidence and served so that respondents have an opportunity to answer them.

The claimant brought proceedings against Christopher Gossage and nine other defendants. Pumfrey J ordered that the claim would be dismissed unless an application for directions, including an application to release or continue the stay, was made by 4.00 pm on 12 August 2005. An application notice seeking only a continuance of the stay was not filed after the court office treated the request as seeking an urgent hearing. Blackburn J subsequently dismissed the claim, treating the matter as an application for an extension of time. The claimant appealed. The Court of Appeal considered whether that order should stand and how a separate application for injunctions should proceed.

Permission to appeal was granted. The order of Blackburn J dated 12 August 2005 was set aside. The court directed that the proceedings should stand struck out under Pumfrey J’s order unless the claimant filed an application to show cause within 21 days.

1. The application notice which the claimant’s representatives had attempted to file sought a continuance of the stay. It was not expressly an application for an extension of time to comply with Pumfrey J’s order and might not itself have satisfied that order.
2. Before dismissing the claim for non-compliance, the judge needed to determine whether the proposed application would have complied with the order and why it had not been filed. Those questions had not been addressed. In those circumstances, it would be disproportionate to allow the dismissal order to stand.
3. The appropriate course was not for the Court of Appeal to determine those matters itself. The claim was to remain struck out unless, within 21 days, the claimant filed an application on notice under Civil Procedure Rules 1998 CPR 23 to show cause why the proceedings should not be struck out. The application was to be made in the Chancery Division and supported by the witness statements of Miss Letang and Mr Nicholas. The application notice had to be served on the respondents.
4. The separate application for injunctions was remitted to the Chancery Division. An injunction application supported by evidence was entitled to be heard, but the present application had no supporting evidence and the respondents had no opportunity to address it. It should therefore be made in the High Court rather than the Court of Appeal, unless ancillary to a matter properly before the appellate court.

The application for injunctions was not linked to the show-cause application unless a judge of the Chancery Division later considered that convenient.

• Court of Appeal (Civil Division): [2006] EWCA Civ 631. Permission to appeal granted; appeal answered; Blackburn J’s order set aside; conditional strike-out directed; injunction application remitted to the Chancery Division.
• High Court of Justice: Blackburn J dismissed the claim by order dated 12 August 2005, following the claimant’s alleged failure to comply with Pumfrey J’s unless order of 12 May 2005.