Levy v Ellis -Carr & Ors

Relief from sanctions requires the court to consider all the circumstances, including the administration of justice, the promptness and explanation of the default, the party’s conduct, responsibility for the failure, prejudice, and the effect on the trial timetable. Serious and repeated procedural defaults may weigh strongly against relief. Nevertheless, the court must balance the prejudice to both parties and may grant relief where the defaulting party would otherwise lose the opportunity to pursue an appeal, the prejudice can substantially be addressed in costs, and effective case-management conditions can preserve control of the proceedings.

Mr Ellis-Carr sought permission to appeal a decision of Registrar Derrett dated 24 May 2011. Vos J directed that an appeal bundle, including the registrar’s transcript, be filed within 35 days. After repeated failures to comply, Vos J made an unless order on 12 October 2011. The appeal stood struck out when the required bundle was not filed by the specified date.

An application to set aside the unless order was made out of time. At the hearing, the respondent consented to treating it as an application for relief from sanctions under CPR 3.9. The central issue was whether relief should be granted despite the delay, repeated non-compliance and resulting adjournment.

1. The application to set aside Vos J’s order of 12 October 2011 failed. There was no sufficient basis for setting aside that order. The appellant had not pursued the transcripts or assembled the other required documents, and the earlier correspondence would have reinforced the conclusion that the appeal was not being prepared.

2. The court treated the application as one for relief from sanctions under CPR 3.9. The court considered the administration of justice, the promptness of the application, whether the default was intentional, the explanation for it, compliance with other procedural obligations, responsibility for the default, the effect on the trial date, and prejudice to each party.

3. The defaults were serious. There was substance in the submission that the failures were intended to secure an adjournment. There was no good explanation, the appellant had a deplorable history of procedural failures, and the default had already caused an adjournment. These were powerful reasons to refuse relief.

4. The balance nevertheless favoured relief. An appeal bundle had eventually been produced and the remaining transcripts were expected. The respondents suffered real prejudice, but that prejudice could to some extent be compensated in costs. Refusal would deprive the appellant of the opportunity to pursue an appeal concerning an important and substantial claim, which was not entirely devoid of merit.

5. Relief from sanctions was granted subject to conditions. The appellants were required to check weekly on the progress of obtaining the remaining documents and to report weekly to the respondent. The appeal was to be re-fixed on an expedited basis once the documentation had been obtained.

1. High Court (Chancery Division): Vos J’s unless order of 12 October 2011 caused the appeal to stand struck out when the required appeal bundle was not filed. Mr Justice Floyd refused to set aside that order but granted relief from sanctions under CPR 3.9, subject to case-management conditions.