Senior-Milne, R (on the application of) v HM Treasury (Rev 1)

An unless order remains valid and enforceable where its substance is clear, even if it has not been formally sealed. An order requiring a litigant to provide a full and satisfactory explanation, supported by medical evidence, may validly operate as an unless order. Failure to comply by the specified deadline permits the claim to stand dismissed. A litigant who could have provided the required evidence but chose not to do so cannot establish compliance through late or irrelevant material. Relief from sanctions under rule 3.9 may be sought, but where the relevant non-compliance is established the application will fail.

The claimant brought separate judicial review proceedings against HM Treasury and the Institute of Chartered Accountants in England and Wales. In each matter, permission had been refused or remained unresolved, and an oral hearing was listed for 19 October 2012.

On 18 October 2012, HHJ Langan QC ordered the claimant to file and serve by 26 October a witness statement giving a full and satisfactory explanation for his inability to attend court, supported by medical evidence identifying the relevant condition and estimating when he could attend. The order provided that the claims would stand dismissed if he failed to comply.

The claimant did not provide the required evidence. Orders dated 1 November 2012 declared that both claims had been dismissed. He applied to overturn or reconsider those orders. The central issues were whether the orders were invalid because they were unsealed or vague, whether the claimant had complied, and whether the resulting dismissals should be set aside.

1. Disposition. Both applications were dismissed. The orders made in the Treasury and Institute proceedings were valid, and the claims had properly stood dismissed following non-compliance.
2. Validity of the orders. Under CPR 40.2, the substance of the order was material rather than its form in this context. Formal sealing was not essential to its validity. The claimant had also been plainly aware of the orders and had corresponded about them immediately afterwards.
3. Clarity of the unless order. The requirement for a full and satisfactory explanation supported by medical evidence was sufficiently clear. It was capable of being enforced as an unless order and was not rendered vague by the inclusion of those requirements.
4. Medical evidence and compliance. There was no legal impediment to obtaining medical certificates retrospectively. The order required evidence addressing the claimant’s inability to attend on 19 October 2012, identifying the condition that prevented attendance and estimating when attendance would become possible. Material sent months late, concerning earlier years or different proceedings, did not satisfy the order.
5. Effect of non-compliance. The orders were valid, sensible and appropriate. The claimant could have obtained the required evidence but chose not to do so. HHJ Langan QC was therefore entitled to certify that the claims stood dismissed. Although the claimant could have applied for relief from sanctions under rule 3.9, such an application would have been dismissed on these facts.