Negahbani v Sarwar

A sanction imposed by a court order takes effect unless the defaulting party applies for and obtains relief. An application for an adjournment is not, without more, an application for relief from sanction. Relief requires prompt application supported by evidence and assessment of the relevant circumstances under FPR 4.6, including the Denton stages. Deliberate non-compliance, serious prejudice to the other party, a history of breaches and failure to provide a good explanation strongly weigh against relief. The merits of the underlying appeal are generally irrelevant, unless the proposed defence is so strong as to justify summary judgment. A litigant’s fair-trial rights remain subject to proper compliance with procedural obligations.

The applicant sought financial support from the respondent in long-running family proceedings concerning their alleged marriage, the respondent’s paternity of their child and financial remedies. The respondent had permission to pursue appeals subject to payment of a Legal Services Payment Order. The order provided that the appeals would be dismissed unless payment was made by a specified time.

The respondent did not pay, did not obtain a stay and did not apply for relief from sanction before seeking an adjournment of the listed appeals. The central issue was whether the appeals had been automatically dismissed and, if so, whether the court should adjourn the matter or grant relief from sanction.

1. Automatic dismissal. The appeals were automatically dismissed when the respondent failed to pay the sum required by the unless order by the specified deadline. The respondent had not applied for or obtained a stay before the sanction took effect.
2. Adjournment and relief. The application to adjourn was misconceived. There was nothing to adjourn unless an application for relief from sanction was made. The absence of such an application was a deliberate choice. An application for relief must be made promptly and supported by evidence, as required by FPR 4.5 and 4.6.
3. Denton principles. Applying Denton v TH White [2014] 1 WLR 3926, the breach was serious and significant because non-payment substantially impeded preparation for the appeals and prolonged litigation. It was deliberate, with no good explanation. The relevant circumstances included the respondent’s history of non-compliance, his experienced legal representation, the prejudice to the applicant and the effect on the administration of justice.
4. Merits. The merits of the appeals were generally irrelevant to relief from sanction, applying Global Torch v Apex Global [2014] 1 LSR 4495, unless the proposed defence was so strong as to justify summary judgment. The court also considered that subsequent developments had affected the significance of the earlier permission decision.
5. Disposition. The appeals were dismissed and consequential orders were made. The later application for relief from sanction was refused. The court rejected the contention that enforcement of the sanction removed the respondent’s fair-trial rights. Such rights, including under article 6, remain subject to proper conduct of litigation.

The judgment records that permission to appeal had previously been granted in relation to two orders, subject to conditions imposed by Moor J. The Court of Appeal, through King LJ, refused permission to appeal and a stay concerning the Legal Services Payment Order. The High Court then held that the appeals had been automatically dismissed and refused relief from sanction.