London Borough of Southwark v Onayomake

Relief from a procedural sanction is not automatic merely because the default was wholly that of a party’s legal representative. Nor does the fact that possession proceedings concern a home prevent a proportionate strikeout. However, the court must apply the Civil Procedure Rules factors as a whole and deal with the case justly. An appellate court may intervene where a case-management decision is plainly wrong or disproportionate. A prompt application, an unintentional default, an adequate explanation for the principal failure, no material prejudice, a viable defence and a trial date that could still be met made refusal of relief disproportionate.

The council brought possession proceedings against the defendant after his mother’s death. He contended that he had succeeded to her secure tenancy under the Housing Act 1985. His defence and counterclaim had a reasonable prospect of success.

The case was allocated to the fast track. After the defendant’s solicitor failed to file a pre-trial checklist and did not attend a case-management conference, District Judge Zimmels struck out the defence and counterclaim. He later refused relief from that sanction and made an undefended possession order. Mr Recorder Widdup dismissed the defendant’s appeal.

The defendant’s second appeal concerned whether refusal of relief from the strikeout was a just and proportionate exercise of the court’s case-management discretion.

Decision

1. The appeal was allowed. The Court held that the district judge had been plainly wrong to refuse relief from the strikeout, and that the recorder should have allowed the first appeal. The defence and counterclaim were therefore to proceed to a defended trial before a circuit judge in the county court.

2. Per Tuckey LJ, the fact that non-compliance was solely the fault of the legal representative did not itself require relief under rule 3.9(1) of the Civil Procedure Rules. Equally, the fact that the proceedings concerned the defendant’s home did not prevent a proportionate strikeout in an appropriate case. An appellate court should not interfere with a firm and fair case-management decision unless the discretion was exercised wrongly, including where the decision was plainly wrong or disproportionate.

3. On the facts, the original strikeout principally resulted from non-attendance at the conference. Had the solicitor attended, failure to file the checklist would not realistically have led to immediate strikeout; an unless order was the likely response. The solicitor had a credible explanation for her late arrival, made the relief application promptly after receiving the order, and had not acted intentionally.

4. The relevant rule 3.9(1) factors favoured relief. Some court time had been wasted, but the council suffered no uncompensated detriment. The failure was wholly the solicitor’s, the defence was good and arguable, and the trial date could still have been retained if relief had been granted promptly. The unexplained checklist default did not justify treating the conduct as repeated failures or as evidence that the case was not being pursued diligently.

5. Chadwick LJ and Maurice Kay LJ agreed. Maurice Kay LJ added that no appellate court had considered the substantive entitlement to possession. The trial judge would therefore be unfettered by any finding on the tenancy issue.

• Court of Appeal (Civil Division) — allowed the defendant’s second appeal: [2007] EWCA Civ 1426.
• Lambeth County Court (Mr Recorder Widdup) — dismissed the defendant’s appeal from the refusal of relief from sanction.
• Lambeth County Court (District Judge Zimmels) — struck out the defence and counterclaim, refused relief from that sanction, and made an undefended possession order.