Crawley v Seacor Marine (Guernsey) Ltd

An unless order must be construed according to its terms and the context in which it was made. Compliance ordinarily requires a party to set out, with reasonable particularity, the case it intends to pursue and to provide the documents on which it intends to rely. The court should not ordinarily investigate the merits when deciding whether such an order has been obeyed. A failure to establish a plausible or sustainable case is ordinarily a matter for an application under Rule 3 or Rule 24, or for determination at trial. Striking out the whole claim for defects confined to one head of damages is generally inappropriate.

The claimant alleged that he injured his foot while working aboard the defendant’s vessel. After delay in prosecuting the claim, the county court ordered him, unless he filed full particulars of loss with supporting documents, to have his claim struck out. The claim was struck out when the defendant challenged the accuracy and completeness of the schedule.

On appeal, His Honour Judge Thorn QC held that filing a schedule and supporting documents complied with the order, even though the case might be vulnerable at trial, and restored the claim. The defendant sought permission for a second appeal, arguing that the order required material demonstrating reasonable prospects of success. The central issue was the proper construction of the order and the extent to which its compliance could be assessed by reference to the merits.

1. Permission refused. The application did not raise an important point of principle or practice, nor was there any other compelling reason for a second appeal.
2. An unless order is self-executing: the consequences of non-compliance follow automatically without a further application. Such orders should be used sparingly, with regard to the consequences of non-compliance in the context of the case.
3. An unless order is construed by reference to its own terms and the context in which it was made. No general rule can determine what every such order requires. The order here required the claimant to state, with reasonable particularity, the case he intended to pursue at trial and to support it with the documents on which he intended to rely.
4. It was unnecessary and inappropriate, when deciding compliance, for the deputy district judge to investigate whether the claim was plausible, accurate, or likely to succeed. Unless the schedule and documents were so inadequate that they did not amount in substance to a statement of case, non-compliance was not established.
5. A schedule of damages remains essentially a statement of the claimant’s allegations and the matters he will seek to prove. A party who considers that the pleaded case discloses no arguable cause of action or is bound to fail may challenge it under Rule 3 or Rule 24, but that is a distinct process.
6. The earlier order should in any event have been limited to the relevant head of special damages. Failure to provide an adequate schedule did not justify striking out the claim as a whole, including a claim for general damages. The formal order was: application refused.

• Court of Appeal (Civil Division): Permission for a second appeal was refused: [2008] EWCA Civ 492.
• Kingston-upon-Hull County Court: His Honour Judge Thorn QC allowed the claimant’s appeal, holding that filing the schedule and documents complied with the order notwithstanding possible substantive weaknesses.
• Kingston-upon-Hull County Court: Deputy District Judge Godfrey had struck out the claim for alleged non-compliance with an unless order requiring particulars of loss and supporting documents.