Deoranee Boodia v Volodymry Yatsyna

The Court of Appeal allowed the claimant's appeal and held that the county court judge was wrong to treat the claims as permanently ended by automatic strike-out without considering or granting relief against sanctions. The court analysed the statutory and procedural framework for trial fees (Civil Proceedings Fees Order 2008 and CPR Part 3.7A1) and rejected the argument that the phrase "at least 28 days prior" required reckoning in clear days so as to invalidate the fee notice. The court held that a court may, by order or of its own motion, extend time for compliance and grant relief against sanctions (applying the principles in Denton).

The court further found that the court-generated listing communications of 3 and 25 September 2018 were administrative notices and not judicial orders capable of reinstating automatically struck-out claims. On the facts, however, the Court of Appeal concluded it would grant relief against sanctions retrospectively and reinstate the claims so as not to invalidate a trial that had taken place and to avoid disproportionate injustice.

Background and procedural posture:

• The appellant, Mrs Boodia, brought two building disputes against Mr Yatsyna concerning works at the Gables (completed 2015) and the Barn (completed 2010). Both claims were issued on 11 November 2015. The Barn claim was tried before DJ Jarzabkowski on 7 January 2019 who gave judgment for the claimant. The defendant appealed to HHJ Luba QC who held that the claims had been automatically struck out under CPR Part 3.7A1 for failure to pay the trial fee and that no application for relief against sanctions had been made; the judge declined to treat the trial as valid. The claimant appealed to the Court of Appeal.

Nature of the application and relief sought:

• The appeal concerned reinstatement of the claims and relief against the sanction of automatic strike-out following late payment of trial fees; alternatively the question whether the court (or court staff) had validly extended time for payment or otherwise reinstated the claims by administrative listing notices.

Issues for decision:

• whether the trial fee notice complied with CPR Part 3.7A1 and the Civil Proceedings Fees Order 2008;
• whether any listing document of 3/25 September 2018 operated as a judicial order reinstating struck-out claims;
• whether a court can extend time or grant relief against sanctions of its own motion without a formal application and, applying Denton, whether relief should be granted in the present circumstances.

Reasoning and disposition:

• The court reviewed the statutory fee regime (section 92 Courts Act 2003, the Fees Order) and the relevant CPR provisions (notably Part 3.7A1 and Practice Direction 3B). It rejected the submission that the phrase "at least 28 days prior" required computation in clear days and held that the Fees Order did not itself import the "clear days" rule. Even if the fee notice contained an administrative error, CPR Part 3.10 permits the court to remedy procedural error.
• The court held that ordinary listing communications which do not bear a judge's name or comply with CPR Part 40.2 and which do not inform parties of their right to apply to set aside an order are administrative notices and not judicial orders capable of reinstating a claim that had already been automatically struck out.
• The Court of Appeal accepted that the court has power to exercise its case management jurisdiction, including extending time and granting relief against sanctions on its own motion (Keen Phillips, Marcan, Nelson), and that the Denton three-stage test governs relief from sanctions. Considering the Denton stages and the particular facts (inadvertent non-payment, lack of PD 3B notification, the trial was vacated for lack of court time not because of non-payment, the parties had proceeded on the basis the trial would go ahead, fees were later paid and the Barn trial had been heard and decided), the court concluded relief should be granted and the appeal allowed so as to reinstate the claims and preserve the trial judgment.

Wider context:

• The court recognised the public interest in enforcing fee rules but also emphasised proportionality and the court's duty actively to manage litigation to avoid disproportionate injustice where the relief criteria are met.

Appeal allowed. The Court of Appeal held that (i) the trial fee notice under CPR Part 3.7A1 and the Fees Order was effective and the claim had been automatically struck out for non-payment, but (ii) the court has power to extend time and to grant relief against sanctions of its own motion, and (iii) the listing documents of 3 and 25 September 2018 were administrative notices not judicial orders capable of reinstating struck-out claims. Applying the Denton test and the relevant authorities, the Court of Appeal would grant relief against sanctions retrospectively and reinstate the claims to avoid disproportionate injustice, thereby validating the trial outcome in respect of the Barn and allowing the appeal.

County Court at Brentford: trial before DJ Jarzabkowski 7 January 2019 (judgment for claimant on Barn claim). Decision below: HHJ Luba QC held the claims were struck out for non-payment of trial fees (19 November 2020). Appeal to the Court of Appeal: [2021] EWCA Civ 1705 (this judgment) allowed the appeal.