Momson v Azeez

A second appeal concerning relief from procedural sanctions may warrant permission where the proposed grounds have a real prospect of success and raise an important point of principle or practice, or another important reason exists. Where a sanction has barred a party from defending a serious civil claim, arguable questions may arise as to proportionality under Article 6 and whether the court considered the circumstances as a whole after addressing the CPR 3.9 checklist. Those questions justified permission in this case, but the court did not determine them on their merits.

The claimant alleged that a common intention constructive trust entitled her to interests in a number of properties held by the defendant. An unless order requiring disclosure was not complied with. HHJ Marshall barred the defendant from defending at trial and subsequently made declarations concerning the properties.

Briggs J dismissed the defendant’s appeal against the barring order after considering the factors in Civil Procedure Rules 1998, CPR 3.9. The defendant sought permission for a second appeal, relying in particular on the seriousness of the sanction and Article 6 of the European Convention on Human Rights.

The central issue was whether the sanction had been assessed proportionately and in the round.

1. Permission to appeal was granted against Briggs J’s order on three limited issues. The proposed grounds had a real prospect of success and raised important points of principle or practice in a second appeal.

2. The Court of Appeal did not decide whether relief from sanctions should have been granted. It identified an arguable issue as to whether it was clearly wrong to regard a trial at which the defendant could defend and give evidence, despite incomplete disclosure, as manifestly unfair to the claimant.

3. It also held that it was arguable that Article 6 required the court to consider the proportionality of a sanction which barred the defendant from defending a serious proprietary claim. A further arguable issue was whether the court had considered the circumstances in the round, rather than treating the individual CPR 3.9 factors as conclusive.

4. Lady Justice Arden referred to CIBC Mellon Trust Ltd v Stolzenberg [2004] EWCA Civ 827, where the CPR 3.9 checklist was described as requiring a final overall assessment under the overriding objective. Lord Justice Wall agreed.

5. The separate application for permission to appeal HHJ Marshall’s substantive order of 30 January 2007 was adjourned to be heard with the permitted appeal. The appellant was directed to file separate grounds and a skeleton argument.

• Court of Appeal (Civil Division): Granted permission for a second appeal from Briggs J’s order on limited procedural issues, and adjourned the application concerning the substantive county court order.
• High Court: Briggs J, by order dated 7 March 2008, dismissed the defendant’s appeal against HHJ Marshall’s order barring him from defending, after considering CPR 3.9.
• Central London County Court: HHJ Marshall barred the defendant from defending at the start of trial on 29 January 2007. On 30 January 2007 she made substantive declarations concerning the ownership of the properties.