Barakat v Greycourt Ltd

Relief against sanctions may be granted where a serious and inadequately explained delay has prevented an application from being made within the period specified by the court, if refusing relief would cause serious injustice and would not further the overriding objective.

The Denton approach requires consideration of the seriousness and significance of the breach, the explanation for it, and all the circumstances of the case. The court may assess the merits of the application for relief without determining the merits of the underlying appeal. Where an order was made on an erroneous understanding that the applicant was responsible for a failure caused by the court, setting aside the order may be necessary once relief is granted.

The applicant had issued an appeal against a County Court judgment concerning trademark ownership and infringement. The High Court had required an appeal bundle, the judgment transcript and supporting evidence for an application for a stay.

The appeal was later struck out without notice by Mann J for want of prosecution, including failure to lodge the appeal bundle. The order proceeded on the assumption that the applicant was responsible for the delay in obtaining the transcript. The court file showed that the applicant had completed the necessary application for public funding by June 2019, and that the transcript had not been obtained because the court had failed to process the application.

The applicant applied out of time to set aside Mann J’s order. The central issue was whether relief against sanctions should be granted for failure to apply within the specified seven-day period.

1. Relief against sanctions granted. The application was governed by the three-stage approach in Denton v T H White Limited [2014] EWCA Civ 906, together with the requirement in rule 3.3(5) of the Civil Procedure Rules 1998 that an application to set aside an order made without notice be made within seven days or such other period as the court specified.
2. The first question was the seriousness and significance of the breach. The delay was serious because the applicant failed to apply promptly, the respondent was entitled to regard the appeal as ended, and enforcement of the costs order had begun.
3. The second question was whether there was a good explanation. The applicant’s anxiety and depression did not fully explain the delay. The evidence did not show that he was incapable of protecting his interests, and he had access to legal assistance.
4. The third question required consideration of all the circumstances and the overriding objective. The court did not assess the merits of the underlying appeal because they were too difficult to determine. It instead assessed the merits of the application to set aside Mann J’s order.
5. The decisive circumstance was that Mann J would not have made the order had he known that the applicant had complied with the transcript requirement and that the remaining failure was attributable to the court. Refusing relief would therefore create a serious injustice and would not further the overriding objective. The conclusion was reached only by a fine margin, given the unexplained delay.
6. Once relief against sanctions was granted, Mann J’s order had to be set aside. Consequential matters and the costs of the application were left to be dealt with separately.

The judgment itself concerned an application to set aside an order made without notice by Mann J on 11 December 2019. That order had struck out the applicant’s application for permission to appeal from the County Court judgment and refused public funding for the transcript.

• High Court (Chancery Division): the application was issued on 31 January 2020 and granted. Relief against sanctions was granted and Mann J’s order was set aside.