Cutler v Barnet London Borough Council

A court may consider relief from sanctions under CPR 3.8 and 3.9 even where the application is made orally and no formal application notice has been issued. The court may also act on its own initiative in an appropriate case. It must consider the relevant relief-from-sanctions factors, proportionality and the overriding objective. A failure to issue a formal application under CPR Part 23 does not remove the court’s jurisdiction. Debarring a person from defending possession of her home solely for that procedural reason may breach Article 6 of the ECHR.

The appellant appealed against an order of the Central London County Court dated 8 May 2014. She had been debarred from defending the respondent local authority’s possession claim after failing to comply fully with an unless order requiring disclosure. The county court held that an oral request for relief from sanctions was ineffective because no formal application had been issued under CPR Part 23, and proceeded to summary judgment and a possession order.

The appeal concerned whether the court had jurisdiction to consider an oral application, whether formal written notice was required, whether the court’s case-management powers remained available, and whether the refusal to consider relief was compatible with Article 6.

1. The appeal was allowed. The county court judge had erred in concluding that he had no power to consider the appellant’s oral application for relief from sanctions.
2. CPR 3.8 and 3.9 do not require an application for relief from sanctions to be made in writing. An oral application supported by relevant witness statements may constitute an effective application. The court may dispense with written notice under CPR 23.3(2)(b).
3. The court’s general case-management powers under CPR 3.1(2) and 3.3(1) are not excluded by the sanctions provisions. The authorities in Keen Philips v Field and Marcan Shipping (London) Ltd v Kefalas remained good law. They establish that the court may grant relief from a sanction, including on its own initiative in an exceptional or appropriate case.
4. The judge was required to consider the relevant factors under CPR 3.9, together with proportionality and the overriding objective. Applying the principles in Folashade Rashida Momson v Dauda Abiodun Azeez, debarring the appellant from defending possession of her home solely because no formal CPR Part 23 application had been issued amounted to a breach of Article 6.
5. The court declined to determine whether an application for relief would ultimately succeed. That issue had not been considered or argued below. The complaint concerning the respondent’s alleged non-compliance with CPR 3.5.5 did not constitute a separate ground of challenge. The matter was to be considered further on remission.

• High Court (Queen’s Bench Division): appeal allowed against the order of His Honour Judge Mitchell in the Central London County Court dated 8 May 2014. The appellant’s debarment and resulting possession order were set aside for reconsideration in accordance with the judgment.