Alwad v Khan

Relief from sanctions requires evidence addressing the circumstances of the default. The court must assess the matters identified in CPR 3.9, but the absence of evidence may itself justify refusing relief. A party seeking an extension for an appeal transcript must explain the failure to comply with the original order. The court is not required to reopen the application for a fresh hearing where the defaulting party had ample time to comply and supplied no adequate explanation.

The appellant challenged Cranston J’s refusal on 18 November 2011 to extend time for filing the transcript of Master Leslie’s judgment. The extension had been required for an appeal from a judgment awarding the respondent damages and interest following a default judgment on liability. Dobbs J had ordered the transcript to be lodged by 3 October 2011, and Langstaff J later granted a final extension to 11 November 2011, with automatic strike-out if the transcript was not filed. The appellant sought a further extension but provided almost no evidence explaining the delay. The central issue was whether Cranston J had improperly exercised the discretion to grant relief from sanctions.

1. Appeal dismissed. The automatic consequence of the failure to comply with Langstaff J’s order was that the appeal was struck out. The Court of Appeal upheld Cranston J’s refusal to extend time.
2. The application was treated, for present purposes, as an application for relief from sanctions under CPR 3.9. Although the appellant argued that Cranston J had not considered each listed matter seriatim, the court was not persuaded that he had failed to take the relevant matters into account.
3. Under CPR 3.9(2), an application for relief must be supported by evidence. The decisive weakness was the absence of evidence from the appellant explaining when transcript instructions were given, what difficulties had occurred, or what had been done during the preceding three months. A shorthand writer’s letter dated 8 November 2011 did not cure that deficiency.
4. The relevant considerations supported refusal. The administration of justice included the respondent’s interests and the delay caused by the appellant’s conduct. There was no evidence explaining the failure to comply, and the appellant had also failed to comply with earlier court orders. The likely trial date was irrelevant, and there was no evidence of the impact of the default on the appellant sufficient to outweigh the other considerations.
5. It would have been contrary to the proper administration of justice to readmit the matter for a renewed application with fresh evidence. The appellant had had ample time to comply with the transcript orders and had offered no satisfactory explanation. The appellant was ordered to pay the respondent’s costs of £4,443.54 inclusive of VAT if not agreed.

• Court of Appeal (Civil Division) — Appeal from Cranston J’s judgment and order of 18 November 2011, refusing a further extension of time. Appeal dismissed.
• Queen’s Bench Division — Cranston J refused the further extension, following Langstaff J’s final extension order of 4 November 2011 and the automatic strike-out provision.
• Queen’s Bench Division — Master Leslie entered judgment on liability after default and assessed damages and interest on 14 July 2011.