Francis Lawrence Little v Bloomsbury Law Solicitors

An unless order imposing an automatic strike-out sanction remains effective according to its clear terms, even if it was not served. Non-service is instead a significant factor when considering whether to set aside the order or grant relief from sanction. An order made without notice and of the court’s own initiative may be challenged under CPR 3.3(5). The relevant test is whether there is a good reason to disagree with the original decision, giving it due weight. Relief from sanction requires consideration of the seriousness and significance of the breach, the explanation for it and all the circumstances, including the need for efficient appeal administration. A represented party may reasonably be expected to inspect the electronic court file. An informal application for relief may be entertained where the opposing party is not prejudiced and the court has sufficient evidence, but the discretion should be exercised sparingly.

The Claimant applied to set aside an unless order made by Morgan J on 17 March 2020. The order required an appeal bundle to be filed by 4.00 pm on 17 April 2020, failing which the Claimant’s appeal would be struck out. The order was uploaded to the CE filing system but was not served on the Claimant.

The Claimant’s appeal concerned an order made by Master Teverson following proceedings about money retained by the Defendant solicitors after the sale of the Claimant’s property. The Claimant’s appeal bundle was filed only in February 2022, after the appeal had been struck out. The issues were whether there had been a breach, whether the unless order should be set aside under CPR 3.3(5) or CPR 3.1(7), and whether relief from sanction or an extension of time should be granted.

1. The Claimant had breached the unless order. Its wording fixed an unambiguous deadline of 4.00 pm on 17 April 2020. Non-service did not alter that deadline. The making of the order and its subsequent non-service did not, on the facts, breach Article 6, because the CPR provided a mechanism to apply to set aside the order. Non-service remained relevant to the discretionary relief application.

2. The appropriate jurisdiction was CPR 3.3(5), since the order had been made by the court of its own initiative without notice. The jurisdiction under CPR 3.1(7) was also theoretically available. Applying R (On the Application of Kuznetsov) v London Borough of Camden, the court had to give due weight to Morgan J’s decision and identify a good reason for disagreeing with it. There was no such reason. The unless order was appropriate when made and was not set aside.

3. Tyburn Film Productions Limited v British Telecommunications Plc was distinguishable. Although non-service could make refusal of relief inherently unjust where compliance was impossible, the order here had been uploaded to the CE file and was available to a represented party checking the file. The Claimant therefore required relief from the sanction.

4. The court entertained the informal application for relief. Applying Park v Hadi, it considered the absence of a formal application, the Defendant’s ability to respond and the sufficiency of the evidence. The Defendant had not been materially prejudiced in presenting its opposition.

5. Applying the Denton approach, the breach was serious and significant. There was no good explanation for almost two years of inactivity. The timely filing of appeal bundles was important to the administration of justice and the progress of appeals. There was some prejudice to the Defendant, and the existence of the Defendant’s own appeal did not outweigh the seriousness of the default. Relief from sanction was refused.

6. The applications under CPR 3.1(7) and CPR 3.3(5), and the informal application for relief from sanction, were dismissed. The Claimant’s appeal remained struck out with effect from 21 April 2020.

The judgment does not state a prior appeal decision. It concerned an application relating to the Claimant’s pending appeal from an order made by Master Teverson. The Claimant’s appeal had been struck out automatically under an unless order made by Morgan J.