Eden v Rubin

Relief from sanctions following breach of an Unless Order requires a rigorous assessment of the default and all the circumstances under CPR r3.9. A short delay caused by an understandable error may justify relief if it is the only default. It will not do so where the party has persistently ignored earlier orders, deliberately failed to provide the required information and disclosure, and remains in substantive default. The court may also take account of the inherent weakness of the underlying claim, particularly where it lacks supporting evidence. The administration of justice, compliance with court orders and prejudice caused to the opposing party may outweigh the prejudice caused by maintaining the sanction.

The claimant appealed against Master Eyre’s refusal on 24 May 2011 to grant relief from sanctions. His claim for substantial past and future loss of earnings had been struck out under Unless Orders requiring full answers to a Part 18 request, disclosure of specified documents, and an updated schedule of loss.

The claimant had served material late and accepted that his answers and disclosure were inadequate. Revised material served later remained deficient. The central issues were whether the defaults justified relief under CPR r3.9 and whether the claimant’s continued default, the history of non-compliance, prejudice, and the weakness of the loss-of-earnings claim supported maintaining the sanction.

1. Appeal dismissed. Master Eyre was right to refuse relief from sanctions, and the Unless Orders were allowed to take effect.
2. An Unless Order is an order of last resort. It is appropriate after a history of non-compliance and ordinarily carries the stated sanction unless a compelling reason for relief is shown. The court must nevertheless exercise its discretion judicially and consider the circumstances of the individual case. The approach in Hytec Information Systems Ltd v Coventry City Council [1997] WLR 1666 remained applicable, and the caution concerning the draconian consequences of an Unless Order in Marcan Shipping (London) Ltd v Kefalas and Anther [2007] EWCA Civ 463, [2007] 1 WLR 1864 was satisfied here.
3. A two-day delay caused by the solicitor’s admitted mistake would probably have justified relief if it had been the only failure. The decisive defaults were substantive: the answers and disclosure were inadequate, and the claimant remained in default despite later revisions.
4. Applying CPR r3.9, the court considered the administration of justice, promptness, intention, explanation, compliance with other orders, responsibility for the default, trial prospects, and the effects on both parties. The persistent and deliberate pattern of non-compliance, the absence of a good explanation, the defendant’s substantial expenditure and prejudice, and the continuing inadequacy of the material strongly favoured maintaining the sanction. The court applied the principle that court orders must be obeyed, identified in Sayers v Clarke Walker (Practice Note) [2002] 1 WLR 3095.
5. The inherent weakness of the loss-of-earnings claim was also relevant. It depended largely on the claimant’s unsupported assertions, incomplete company records and a calculation which did not establish that the alleged receipts were earnings or account for expenditure. Relief was therefore refused.

• High Court (Queen’s Bench Division): Appeal against Master Eyre’s order of 24 May 2011 dismissed. Relief from sanctions refused and the Unless Orders maintained.
• Master Eyre: On 24 May 2011 refused the claimant’s application for relief from sanctions and refused permission to appeal.
• Permission to appeal: Nicola Davies J granted permission on 1 August 2011.