ROY HARRY COLE & Ors v ANDREW HOWARTH & Ors

Relief from an automatic strike-out for non-payment of a trial fee requires the court to apply the three-stage approach in Denton v White. The court must assess the seriousness and significance of the breach, the reason for it and whether it is excusable, and all the circumstances of the case. A serious and inexcusable breach does not inevitably bar relief. The court must decide whether, having regard to the overriding objective, the interests of justice favour restoring the claim. Relevant considerations include prompt payment, any earlier breaches, responsibility for procedural confusion, prejudice to the opposing party, and whether a fair trial can still take place. Appropriate directions and costs orders may be used to manage prejudice to a litigant in person.

The claimant applied to reinstate a debt claim after it had been automatically struck out under CPR rule 3.9 for non-payment of a £1,175 trial fee by the prescribed deadline. The fee was paid two days late. The application was made shortly before the four-day trial was due to begin.

The claimant relied on the short delay, court failures concerning the pre-trial review, and confusion over trial-bundle directions. The defendant relied on the seriousness of the breach, earlier procedural defaults, delay in applying for relief, and inadequate preparation of the trial bundle. The central issue was whether the claim could be restored while preserving a fair trial for the defendant.

1. The application for relief against sanctions was granted. The automatic strike-out was set aside so that the trial could proceed, subject to directions protecting the defendant’s ability to prepare and present his case.

2. The court applied the three-stage approach in Denton v White: the seriousness and significance of the breach; the reason for the breach and whether it was excusable; and all the circumstances of the case.

3. Non-payment of the trial fee was a serious breach and there was no good reason for the initial failure to pay. Payment two days late mitigated the position to some extent. Other failures concerning the pre-trial review were understandable and excusable because the court had failed to list the review and had issued apparently conflicting bundle directions.

4. The claimant had not delayed inexcusably in applying for relief. The matter was raised promptly, the defendant was put on notice, and the claimant’s hospital attendance explained the further short delay.

5. On the balance of the circumstances, the interests of justice favoured relief. The issues were relatively straightforward, the defendant knew the case well, and a fair trial could still take place if he received additional time and access to the necessary documents. The court would give him latitude beyond that ordinarily given to a litigant in person.

6. The defendant was permitted until 9.30 am the following morning to prepare a supplementary bundle. The claimants were directed to pay associated copying and preparation costs and to ensure access to all documentary evidence necessary for the defence. The trial was deferred until 10.30 am the following morning. Costs of the application were provisionally intended to fall on the claimant, subject to further submissions.