Pipe v Spicerhaart Estate Agents Ltd (t/a Haart)

Relief from sanctions for a late Respondent’s Notice depends on the three-stage test in Denton v TH White Limited [2014] EWCA Civ 906. A serious or significant breach without good reason does not automatically determine the application, but it places decisive weight on the third stage. The court must consider all the circumstances, including efficient and proportionate litigation and compliance with rules and practice directions. Repeated non-compliance, unexplained delay, avoidable prejudice and increased costs may justify refusal. A respondent may then be barred from relying on the late notice or matters which should have been included in it.

The respondent obtained judgment for estate agency fees after a small claims trial before Her Honour Judge Murfitt in the Chelmsford County Court. The appellant was granted permission to appeal. The respondent failed to file its Respondent’s Notice within the period required by the Civil Procedure Rules and served its skeleton argument shortly before the appeal hearing.

The respondent applied for an extension of time of about 48 days. It relied principally on an additional argument based on Foxtons Limited v Pelkey Bicknell & Anr [2008] EWCA Civ 419. The central issue was whether relief from sanctions should be granted.

1. Application refused. The respondent could not rely on its Respondent’s Notice as drafted, or on other matters which should have been included in that notice. The appeal was to be listed as soon as reasonably practicable.
2. Under Civil Procedure Rules 1998, CPR 3.9 and the guidance in Denton v TH White Limited [2014] EWCA Civ 906, the court must consider: the seriousness and significance of the breach; the reason for it; and all the circumstances so as to deal justly with the application.
3. The failure to file, or even seek permission to file, the Respondent’s Notice until 14 December 2015 was a serious or significant breach. There was no good reason for it. Those conclusions did not make refusal automatic, but made the third stage critical.
4. The respondent’s conduct prevented the litigation from being conducted at proportionate cost. The court also took account of the respondent’s previous breach, the appellant’s repeated attempts to engage with it, the resulting delay and costs, and the need to enforce compliance with rules, practice directions and orders.
5. The proposed reliance on Foxtons Limited v Pelkey Bicknell & Anr [2008] EWCA Civ 419 would not have had merely minimal consequences. In any event, the court saw no arguable merit in the point. The respondent was required to serve an amended skeleton argument, after which the court would determine which parts should have appeared in the Respondent’s Notice.

• High Court (Queen’s Bench Division): On appeal from the small claims trial before Her Honour Judge Murfitt in the Chelmsford County Court, the court refused the respondent’s application for an extension of time to file its Respondent’s Notice. The appeal itself was directed to be listed as soon as reasonably practicable.