Patterson (The Trustee In Bankruptcy of George Spencer) v Spencer & Ors

Relief from sanctions under CPR 3.9(1) requires particular weight to be given to efficient and proportionate litigation and compliance with rules and court orders. The default must be assessed in its procedural context, including any pattern of previous non-compliance, delay and indulgence. Relief is ordinarily inappropriate where granting it would perpetuate a culture of delay and non-compliance. The court may consider the apparent merits of an intended appeal, but should be cautious about conducting a merits assessment on an application for relief from sanctions.

The appellant sought relief from the sanction imposed after she failed to comply with an order requiring the filing of a transcript of a county court judgment. The appeal had consequently stood struck out. The underlying proceedings concerned alleged transactions defrauding creditors and transactions at an undervalue. The appellant relied on an alleged mistake, late receipt of the order and the strength of her proposed grounds of appeal. The issue was whether, applying CPR 3.9(1) and the guidance in Mitchell v Newsgroup Newspapers Ltd, relief should be granted.

1. The application for relief from sanctions was dismissed. The appeal therefore remained struck out pursuant to the order of Arnold J dated 4 March 2014.
2. Under CPR 3.9(1), the requirements for efficient litigation at proportionate cost and enforcement of compliance with rules, practice directions and orders are of paramount importance and must be given great weight. Other circumstances remain relevant but generally carry less weight.
3. Following Mitchell v Newsgroup Newspapers Ltd, the default could not be considered in isolation. It formed part of a continuing pattern of non-compliance, delay, wasted court time and increased costs, despite repeated indulgences.
4. The alleged late receipt of the order was rejected on the balance of probabilities. The court was not satisfied that the appellant had failed to receive it in time, and no adequate explanation was provided for the delay in passing it on.
5. The court was far from satisfied that it should assess the strength of the proposed appeal on an application for relief from sanctions. In any event, the grounds appeared unpersuasive and permission to appeal would have been refused if that application had been before the court.
6. The parties were directed to seek agreement on the consequential order, with written submissions or a further hearing if necessary.

• Central London County Court: orders made by District Judge Clarke on 23 July and 29 October 2013, and by District Judge Hart on 29 November 2013, in the underlying proceedings.
• High Court: Arnold J ordered on 4 March 2014 that the appeal would stand struck out unless the required transcripts were filed by 21 March 2014.
• High Court (Chancery Division): relief from sanctions refused; the strike-out remained effective.