Singh v Singh

An unless order requiring a defendant to file and serve a defence requires a defence in proper form complying with the Civil Procedure Rules. Filing a document labelled as a defence is insufficient where it fails to identify admissions, denials, matters requiring proof and the defendant’s positive case. Deficiencies in a pleaded defence cannot be cured by a witness statement.

For non-trivial default, relief from sanctions requires a convincing explanation. The court gives particular weight to efficient and proportionate litigation and compliance with rules and orders. An appeal court should not interfere with a case-management discretion within the generous ambit of reasonable disagreement.

The claimant challenged a transfer of property to the defendant, her son, alleging undue influence and duress. The District Judge struck out the original defence and ordered the defendant to file and serve a compliant replacement by 24 April 2013. The replacement was held not to comply with CPR 16.5, and the defendant was debarred from defending the claim.

On 23 July 2013 the District Judge refused permission to amend the defence and refused relief from sanctions. The defendant appealed the orders of 9 and 23 July. The issues were whether the replacement defence complied with the unless order and CPR 16.5, whether a witness statement could cure pleading deficiencies, and whether relief from sanctions should be granted.

1. Appeals dismissed. Permission to appeal both orders was granted, but both appeals were dismissed. Permission to rely on the witness statement dated 12 August 2013 was refused.
2. The 17 April unless order required service of a defence in proper form complying with the Civil Procedure Rules. The replacement therefore had to comply with CPR 16.5, not merely bear the label defence.
3. CPR 16.5 required the defendant to identify allegations admitted, denied or requiring proof, give reasons for denials, and state any different version of events. The replacement defence was materially deficient. It contained deemed admissions concerning matters the defendant did not intend to admit and did not correctly set out the case later advanced.
4. The deficiencies could not be cured by the defendant’s 9 April witness statement. The statement had not been served in accordance with the order and, in any event, evidence could not cure a failure to plead a compliant defence. The later version three defence introduced new matters and was not merely explanatory.
5. Applying Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 and Durrant v Chief Constable of Avon and Somerset Constabulary [2013] EWCA Civ 1624, the court treated the default as non-trivial. There was no good reason for it, and relief was not justified in light of delay, additional hearings, prejudice and the need for efficient and proportionate litigation.
6. The District Judge had not erred in principle or exceeded the generous ambit within which reasonable disagreement was possible. The appeal court could not substitute its own assessment merely because it might have preferred another case-management outcome.

The judgment concerned appeals to the High Court from orders made by District Judge Khan on 9 and 23 July 2013. Permission to appeal both orders was granted, but both appeals were dismissed.