Joyce v West Bus Coach Services Ltd

An unless order takes effect according to its clear terms. Where service is governed by Civil Procedure Rules 1998, Rule 6.26, deemed service governs even if the document arrives earlier. Once an unless order has struck out a claim in substance, the claimant cannot accept an otherwise subsisting Part 36 offer because there is no extant claim capable of being stayed. Relief from sanction remains available under Rule 3.9 as an exceptional discretion. In exercising it, the court should assess the breaches, prejudice, fairness of trial and the overriding objective. Minor breaches, little or no prejudice and the continued possibility of a fair trial may justify relief.

The claimant brought proceedings for unpaid vehicle-hire charges after the defendant admitted negligence. The claim was subject to an unless order requiring disclosure and other procedural steps, failing which it would be struck out automatically. The claimant served a list of documents late under the deemed-service provisions, then purported to accept an earlier Part 36 offer. A district judge subsequently struck out the claim. On appeal, HH Judge Winstanley held that there had been no material breach by the relevant date, that the offer had been accepted, and that relief from sanction would in any event be granted. The defendant appealed. The central issues were whether the unless order had been breached, whether the Part 36 offer remained capable of acceptance after strike-out, and whether relief from sanction should be granted.

The defendant’s appeal succeeded on the Part 36 issue, but the claimant’s relief from sanction remained effective, so the claim was not finally lost.

1. Deemed service. The list of documents was posted first class on 9 September 2010 and was deemed served on 13 September under CPR 6.26. Actual receipt on 10 September did not alter the deemed date. Godwin v Swindon Borough Council [2001] EWCA Civ 1478 applied to documents generally, not merely claim forms. The unless order was clear and had to be obeyed according to its terms.
2. Effect of strike-out. A claim struck out under an unless order is at an end in substance. CPR 36.11(1), which provides for a stay following acceptance, presupposes an extant claim. The formal step of obtaining judgment under CPR 3.5 does not determine whether the offer can be accepted. Accordingly, the claimant could not accept the Part 36 offer after the sanction had taken effect.
3. The interpretation was consistent with the overriding objective. It promoted compliance with court orders, reduced unnecessary disputes and protected proportionate use of court resources. The same principle would apply where a defence, rather than a claim, had been struck out.
4. Relief from sanction. The application under CPR 3.9 was separate from the appeal on Part 36. The breaches were relatively minor, the defendant had suffered little real prejudice, and a fair trial of the remaining damages issue remained possible. The lower judge’s grant of relief was therefore allowed to stand. The claimant’s representatives’ failures at the earlier hearing could be reflected in costs but did not make a fair trial impossible.
5. The parties were directed to draw up an agreed order dealing with the judgment and ancillary matters, including costs. Any disagreement was to be resolved on written submissions if possible.

• High Court (Queen’s Bench Division): allowed the defendant’s appeal on the effect of the unless order and Part 36 offer, but upheld the grant of relief from sanction.
• County Court: HH Judge Winstanley had allowed the claimant’s appeal from District Judge Grosse, holding that the claim had not been materially struck out before acceptance of the Part 36 offer and granting relief from sanction in the alternative.
• District Judge: struck out the claim pursuant to the unless order and set aside the later order staying the action.