Griffith & Anor v Gourgey & Ors

Where a party has already sought relief from a procedural sanction, a second application ordinarily requires a material change of circumstances, unless the original decision was based on misstated facts or a manifest mistake. This applies where conditional relief was granted but the condition was not fulfilled: the conditional order operates as an effective refusal of relief, and the original sanction remains in force. A later judge cannot reopen the merits of the earlier application merely because the party seeks to rely on the same facts or belated compliance. An incomplete response does not avert a strike-out sanction imposed by an unless order.

The appellants were respondents to three unfair prejudice petitions. Their points of defence were subject to requests for further information under Part 18. After the appellants failed to provide the ordered responses, Rose J made an unless order providing for strike-out of the defences. Mr Monty QC granted conditional relief, requiring a full and complete response by a specified date. The further response was found deficient, and Simon J held that the defences remained struck out and refused a second application for relief. The appeal concerned whether a fresh application could be made without showing a material change of circumstances and whether the strike-out sanction should be revisited.

1. The appeal was dismissed. The order under appeal correctly declared that the appellants’ amended points of defence had remained struck out from 4 p.m. on 22 April 2014, and correctly refused further relief.
2. Mr Monty QC’s order did not impose a new sanction. It activated the strike-out sanction imposed by Rose J, subject to conditional reinstatement if a full and complete response was filed and served by the specified deadline. Since that condition was not fulfilled, the order operated as an effective refusal of relief.
3. A second application for relief from sanctions cannot ordinarily be entertained unless there has been a material change of circumstances, the facts underlying the first decision were misstated, or there was a manifest mistake in formulating the order. The same principle applies whether the application is framed under Civil Procedure Rules 1998 rules 3.9 or 3.1(7).
4. The appellants had provided no compliance with Rose J’s order or with the conditions of conditional relief. Their continuing objections to the scope of the requests did not amount to a material change of circumstances. The reasoning in Thevarajah v Riordan [2016] 1 WLR 76 supported that conclusion, and the approach in Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 was applied.
5. The court refused permission for a very late amendment seeking to argue that the case was exceptional or not normal. Simon J could not properly revisit a point about limiting the strike-out to particular pleading paragraphs, because it had already been rejected by Mr Monty QC and his order had not been appealed.

• Court of Appeal (Civil Division): The appeal from the decision of Simon J was dismissed. The decision is reported at [2017] EWCA Civ 926.
• High Court, Chancery Division, Companies Court: Simon J held that the amended points of defence remained struck out from 22 April 2014 and refused the second application for relief from sanctions: [2015] EWHC 1080 (Ch).