Al-Balhaa v Raphael & Ors

When deciding an application for relief from sanctions, the court need not recite the Denton stages in a fixed formula. The question is whether the substance of the required assessment can be identified and whether the decision was within the judge’s discretion. An informal oral application may be entertained, but its failure to comply with Part 23 and the absence of evidence directed to the relevant issues may materially weaken it. An appellate court should not re-exercise the discretion unless the first-instance judge misdirected himself, acted irrationally or otherwise exceeded the permissible range. An unless order takes effect unless relief is granted, and the court must weigh the seriousness of the breach, its explanation, and all the circumstances, including efficient and proportionate litigation and compliance with rules and orders.

The claimant appealed against HHJ Lamb QC’s order dated 20 October 2017 declaring three consolidated county court claims struck out for non-compliance with an unless order concerning the preparation and service of trial bundles. The order required revised or supplementary bundles containing the defendants’ additional documents and compliant indexing and pagination. The claimant argued that the judge had failed to permit, or properly determine, an application for relief from sanctions under CPR r 3.9, and that striking out was disproportionate. The central issues were whether the oral application had been adequately entertained and whether refusal of relief was a permissible exercise of discretion.

1. Appeal dismissed. The order declaring the consolidated claims struck out, vacating the trial and awarding costs was upheld.
2. Ground 8 was hopeless. Although there was no formal application notice, HHJ Lamb plainly entertained the claimant’s last-minute oral request for relief from sanctions. A judge may assist a litigant in person by identifying the Denton stages, but is not required to do so, particularly where the litigant had access to legal advice.
3. CPR r 3.9 ordinarily requires an application made in conformity with Part 23 and supported by evidence. The informal presentation of the application therefore mattered. The judge had only indirect evidence about the reasons for the breaches and the other material relevant to relief.
4. The court need not adopt a particular formula or straightjacket. A complaint that the judge did not expressly address each Denton stage fails where the essence of the reasoning can be deduced and the decision was open to him. HHJ Lamb had treated the breaches as serious and significant, considered the explanations, and considered the imminence and likely length of the trial, the repeated defects in the bundles, and the requirements of efficient and proportionate litigation and compliance with orders.
5. Rehman was distinguishable. There the first-instance judge had failed to exercise the discretion at all; here HHJ Lamb had deliberately refused relief. The appellate court therefore would not exercise the discretion afresh. The unless order’s consequences followed unless relief was granted, consistently with Marcan Shipping. The decision was neither irrational nor otherwise flawed.

• High Court (Queen’s Bench Division): Appeal from HHJ Lamb QC’s order of 20 October 2017. The appeal was dismissed and the strike-out and costs orders upheld.