Brookes v Hodgson

Failure to comply with a mandatory appellate procedural requirement is a serious breach, but it does not automatically require an appeal or application to be struck out. The court must consider the overriding objective and the approach in Denton v White, including the seriousness and significance of the breach, the reason for it, and all the circumstances of the case. Where the court can determine the practical consequence directly, it should do so rather than make an inevitably futile unless order. Relief may be granted despite serious procedural default where subsequent steps have substantially addressed the position and the opposing party is aware of the application and its substance.

The claimant sought permission to appeal against District Judge Wallace’s dismissal of his application to set aside a statutory demand. Permission was refused on paper by Judge Bird, and the claimant then sought oral reconsideration. The claimant failed to serve the defendant with the reconsideration application as required by paragraph 7.4 of Practice Direction 52B.

The defendant applied for an unless order requiring proof of service and for the claimant’s solicitor to attend to explain documents said to have been sent to the court. The central issues were the appropriate consequence of the procedural breach and whether the available material justified a finding that the court had been deliberately misled or that an earlier extension-of-time order had been obtained by fraud.

1. The claimant had failed to comply with a mandatory requirement of paragraph 7.4 of Practice Direction 52B. The breach was serious and resulted from sloppiness and failure to address the requirements of the rules.

2. The court should address the practical reality of the situation rather than make an unless order which the claimant could not satisfy. In deciding whether relief would have been granted, the court applied the overriding objective and the approach in Denton v White: the seriousness and significance of the breach, the reason for it, and all the circumstances of the case.

3. The breach was balanced by the claimant’s solicitor’s evidence that a letter had subsequently been sent, the defendant’s present awareness of the position, and the fact that the defendant was under no obligation to participate in the oral reconsideration application. The court was satisfied that relief would have been granted if an unless order had been made.

4. The solicitor attended the hearing and provided a witness statement concerning documents sent to the court. Although the explanation raised questions and suggested gross sloppiness or inadvertence, the court could not conclude on the material then available that it was substantially incorrect, fraudulent, or deliberately misleading.

5. No order was made on either limb of the defendant’s application. There was no material justifying setting aside the extension-of-time order or initiating contempt proceedings of the court’s own motion.

1. High Court (Chancery Division): on appeal from Crewe County Court, no order was made on the defendant’s two-limb application.

2. Crewe County Court: District Judge Wallace dismissed the claimant’s application to set aside a statutory demand. Permission to appeal was later refused on paper by Judge Bird, followed by the claimant’s application for oral reconsideration.