Paul Andrew Whittaker v Bertha UK Limited

An appellate court should interfere with a case-management, costs or adjournment decision only where the decision was wrong, unjust because of a serious procedural irregularity, or outside the generous ambit of reasonable disagreement. A litigant in person remains subject to the same standard of compliance with court rules and orders as a represented party.

An unless order requiring payment of interim costs may be appropriate where the defaulting party provides no cogent evidence of inability to pay and the order is necessary to protect the litigation timetable. A stay pending permission to appeal requires cogent evidence of a real risk of irremediable harm. Failure to serve a costs schedule normally calls for a proportionate adjustment reflecting prejudice, rather than automatic loss of costs.

The claimant brought proceedings concerning an alleged change of control under a shareholders’ agreement and sought relief concerning shares in Dogwoof Ltd. Following repeated failures to comply with disclosure orders, the court made remedial disclosure and costs orders, followed by an unless order requiring payment of costs and further disclosure.

The claimant failed to comply. Deputy Master Bowles struck out the claim and entered judgment for the defendant. The claimant then sought permission to appeal in three related appeals, stays of execution, re-listing under CPR Part 23.11, relief under CPR Part 39.3, and permission to pursue a contempt application.

The central issues were whether the lower courts had erred in imposing disclosure and costs sanctions, whether the claimant should have received an adjournment or extension of time, whether enforcement should be stayed, and whether the failure to serve costs schedules affected the orders.

1. Appeals and permission. Permission to appeal was refused in Appeals 126, 127 and 149. The claimant had no real prospect of showing that the disclosure orders, unless order, costs orders, refusal of an adjournment, or strike-out decision were wrong or unjust because of a serious procedural irregularity. The lower courts had applied the relevant principles, considered proportionality, and were entitled to conclude that the claimant had repeatedly failed to comply with disclosure obligations.
2. Litigant in person. The claimant’s unrepresented status did not reduce the standard of compliance. Some latitude might be available at the margins, but the same substantive test applied to his compliance with court orders.
3. Unless order and strike-out. The costs unless order was not an abuse designed to stifle the claim. The claimant had not supplied cogent evidence of impecuniosity, had indicated that he could raise the funds, and had failed to comply despite knowing the consequence. The proximity of trial and continuing disclosure failures justified the sanction. The claimant’s failure to comply with the costs limb caused the claim to be struck out and judgment to be entered for the defendant.
4. Stays. A stay was refused. Although bankruptcy might constitute irremediable harm, the claimant had not given adequate financial disclosure or cogent evidence that enforcement would create that risk. In any event, permission to appeal had been refused and the appeals had no real prospects of success.
5. Costs schedules. The failures to serve costs statements before the relevant hearings were irregularities, but there was no real prospect that they would have changed the outcome. The likely consequence would have been a limited reduction or short adjournment, not avoidance of the costs orders.
6. Other applications. The applications under CPR Part 39.3 and CPR Part 23.11 were dismissed. The June Order was not made because of non-attendance under CPR Part 39.3, but because of non-compliance with the unless order. Permission for the first contempt application was unnecessary and, in any event, the alleged disclosure of documents from open proceedings was not contemptuous. The applications were dismissed, subject to a consequential hearing concerning the first PTA application, the first stay application, costs and possible civil restraint orders.

• Deputy Master Marsh: made the April Order requiring further disclosure and payment of £65,000 costs.
• Master Kaye: made the May Order, including an unless order requiring payment and further disclosure, and assessed costs at £45,000.
• Deputy Master Bowles: refused an adjournment or extension, struck out the claim and entered judgment for the defendant in the June Order dated 23 June 2023.
• High Court, Chancery Appeals: refused permission to appeal in three appeals, dismissed the associated applications, refused stays and declined to re-list the June hearing, subject to a consequential hearing on limited outstanding matters.