Fairacres Ltd v Mohamed

Relief from a procedural sanction may be refused despite a technical default, its practical remedy and the absence of demonstrated prejudice. Under Civil Procedure Rules 1998, r 3.9, the court may consider the entire procedural history, including serial breaches, an earlier adjournment and a further application to vacate the trial. A fair-trial argument does not require relief where that history justifies refusal.

The claimant, a company owned by the leaseholders, sued for service-charge arrears. The defendant counterclaimed for alleged negligent works and relied on a set-off. He repeatedly failed to serve a proper list of documents and did not comply with an Unless Order requiring service by 24 September 2007. His defence and counterclaim were consequently struck out.

After he failed to attend a hearing on 15 October, the Deputy District Judge struck out his application to set aside the Unless Order. On 26 October, HHJ Hallon refused to reinstate that application or vacate the trial and entered judgment for the claimant. The appeal concerned notice of the hearing, compliance with the Unless Order, and relief from the sanction under Civil Procedure Rules 1998, r 3.9.

Appeal dismissed. Lord Justice Lawrence Collins gave the judgment, and Lord Justice Goldring agreed. The Court upheld HHJ Hallon’s refusal to set aside the order of 15 October 2007 and the resulting judgment for the claimant.

1. The defendant had failed to comply with three successive orders concerning disclosure. The failure to serve a proper list was technically defective, but the Unless Order required service by 24 September 2007. Attaching the list to an application made on 21 September was not compliance because the claimant received it after the deadline.

2. There was no basis for appellate interference with the exercise of discretion on conventional grounds. HHJ Hallon was entitled to find that proper notice of the 15 October hearing had been given. Personal service was not required for an application of this kind. The defendant’s or his representative’s absence from the relevant places did not provide a sufficient basis for setting aside the order.

3. Relief from the sanction under Civil Procedure Rules 1998, r 3.9, was not required. Although HHJ Hallon had not been asked to exercise that discretion, the Court stated that, even if she ought to have considered the rule’s checklist, the proper exercise of discretion would have been to refuse relief. The trial had already been adjourned, another vacation was sought, and the defendant had committed serial breaches of court orders.

4. The Unless Order therefore remained in force, with the defence and counterclaim struck out. The formal order was: appeal dismissed.

• Court of Appeal (Civil Division) — Appeal dismissed. [2008] EWCA Civ 1637 .
• Wandsworth County Court — HHJ Hallon refused to set aside the order striking out the defendant’s application, left the Unless Order in force and entered judgment for the claimant for approximately £9,500 plus costs.
• High Court — Eady J refused permission to appeal from an earlier order concerning the trial directions.