North Midland Construction Plc v Geo Networks Ltd

Applications for relief from sanctions must be assessed using the three-stage approach in Denton v White: the seriousness and significance of the breach, whether there was a good reason, and all the circumstances, including efficient and proportionate conduct and compliance with rules and orders.

Failure to serve Particulars of Claim within the rule-based four-month period is ordinarily serious and significant. It is not automatically fatal unless an unless order applies, but valid later service requires the court’s leave. A short delay may justify relief where the pleading has been served and strike-out would be disproportionate. A longer delay, without good reason and accompanied by cavalier conduct, may justify refusal of relief and strike-out.

The claimant brought two related Technology and Construction Court claims against the defendant. In the Project Yellow claim, Particulars of Claim were served slightly more than two weeks late after an agreed extension. In the Fibrespeed claim, they remained unserved more than six weeks after the four-month period following issue of the claim form.

The defendant applied to strike out both claims. The claimant applied for extensions of time and, in relation to Fibrespeed, relief from sanctions. The court had first to determine whether any extension had been agreed for the Fibrespeed claim, then apply the principles governing relief from sanctions.

1. The court followed the three-stage approach in Denton v White [2014] EWCA Civ 906. It considered seriousness and significance, good reason, and all the circumstances, including the need for efficient and proportionate litigation and compliance with rules, practice directions and orders.
2. In the Project Yellow claim, delay of slightly over two weeks was serious and significant, and the explanation was not a good reason. However, Particulars of Claim had been served, the delay was limited, the orders were not unless orders, and strike-out would have been disproportionate. Relief from sanctions and the necessary extension of time were granted.
3. In the Fibrespeed claim, delay of more than six weeks after the four-month period was plainly serious and significant. No good reason was shown. The claim had been formulated before issue, relevant preliminary reports existed before the deadline, and no timely application for an extension had been made.
4. The claimant’s solicitors’ failure to clarify the second consent order, and their last-minute attempt to obtain an extension, demonstrated a cavalier attitude to the rules. The need to enforce compliance under Civil Procedure Rules 1998, CPR 3.9, was especially important.
5. Following Michael Wilson & Partners Ltd v Sinclair [2015] EWCA Civ 774, strike-out was recognised as a drastic remedy requiring sufficient justification. Nevertheless, in Fibrespeed the overall circumstances justified refusal of relief and strike-out. The court declined to determine any limitation defence on these applications.