Chadwick v Burling

Relief from a sanction under CPR rule 3.9 requires a structured assessment of the seriousness and significance of the breach, the reason for it, and all the circumstances of the case. The court must give particular weight to efficient, proportionate litigation and compliance with court orders. A litigant in person remains subject to the rules, although that status may matter at the margins. The merits are generally irrelevant, but may be decisive where the proposed evidence could not establish any arguable case. An appellate court should not interfere with a case-management decision unless it is plainly wrong or outside the generous ambit of reasonable disagreement.

Matthew Chadwick, trustee in bankruptcy of Anthony Burling, sought possession of two properties and declarations of beneficial ownership. Mrs Linda Burling failed to comply with an unless order requiring evidence in answer to the application. Deputy Registrar Brougham QC refused relief from the resulting sanction, refused an adjournment to obtain legal advice, and made declarations concerning the properties.

Mrs Burling appealed. The central issues were whether the Deputy Registrar had properly applied the test under CPR rule 3.9, whether the refusal to adjourn was erroneous, and whether the declarations should stand.

1. The appeal was allowed in relation to 237 Rayleigh Road but relief from sanctions was nevertheless refused on the court’s own re-exercise of the discretion. The appeal was dismissed in relation to 9 Selwood Road. The declarations as to beneficial ownership of both properties stood.

2. CPR rule 3.9 requires the court to consider: first, the seriousness or significance of the breach; secondly, why the breach occurred and whether there was a good reason; and thirdly, all the circumstances of the case. The need for efficient litigation at proportionate cost and the need to enforce compliance with rules and orders have particular importance.

3. In relation to 237 Rayleigh Road, the Deputy Registrar’s reasoning displayed an error of principle, or at least failed properly to address the relevant circumstances. He treated the apparent weakness of the underlying claim as relevant to the third-stage assessment, although the merits were not sufficiently clear to justify summary disposal. The High Court therefore re-exercised the discretion.

4. On that re-exercise, the breach was serious and unexplained. The orders were straightforward, the timetable was generous, and the appellant had been warned that permission was required. Her status as a litigant in person was relevant only at the margins and did not explain the failure to provide evidence. The factors favouring compliance and efficient litigation outweighed the circumstances relied upon.

5. In relation to 9 Selwood Road, the proposed evidence consisted principally of documents which could not support an arguable case. It was therefore legitimate to take that feature into account, and the Deputy Registrar’s refusal of relief was within the range of appropriate decisions.

6. The refusal to adjourn was justified because the appellant had had ample time to obtain advice. The observations concerning amendment of the notice of appeal were unnecessary to the decision and did not determine that application.

• High Court (Chancery Division) — On appeal from Deputy Registrar Brougham QC, the appeal was allowed in relation to 237 Rayleigh Road but relief from sanctions was refused after re-exercising the discretion. The appeal was dismissed in relation to 9 Selwood Road, and the declarations stood.